Tharp v. Blew

• Decision Date: 08 February 1915
• Docket Number: 1905
• Citation: 151 N.W. 1,29 N.D. 583
• Court: North Dakota Supreme Court

151 N.W. 1

29 N.D. 583

J. A. THARP v. GERTRUDE BLEW

No. 1905

Supreme Court of North Dakota

February 8, 1915

Rehearing denied February 20, 1915.

Appeal from the District Court of Sargent County, Allen, J. from a judgment in favor of plaintiff. Defendant appeals.

Reversed on conditions.

Appellant recovered her costs in this appeal.

Wolfe & Schneller, for appellant.

Appellate courts are inclined to overlook mere technicalities and irregularities in the conduct of the trial, where from the whole record it appears that they did not render the trial unfair or the result unjust. But where well established rules of evidence and procedure are violated and ignored, such a trial cannot be considered a fair trial, to which the aggrieved party is entitled at all times. Hearsay evidence was offered and admitted. This was reversible error. State v. Ah Lee, 18 Ore. 540, 23 P. 424; Hopt v Utah 110 U.S. 574, 28 L.Ed. 262, 4 S.Ct. 202, 4 Am Crim. Rep. 417; Morell v. Morell, 157 Ind. 179, 60 N.E. 1093; Dixon v. Labry, 16 Ky. L. Rep. 522, 29 S.W. 21; Shaw v. People, 3 Hun, 272, 2 Cow. Crim. Rep. 200; 6 Enc. Ev. 443; Dysart Peerage Case, L. R. 6 App. Cas. 489; Ellicott v. Pearl, 10 Pet. 436, 9 L.Ed. 485; Amann v. Lowell, 66 Cal. 306, 5 P. 363; Warren v. Nichols, 6 Met. 261; Westfield v. Warren, 8 N.J.L. 249; Coleman v. Southwick, 9 Johns. 45, 6 Am. Dec. 253; Lent v. Shear, 160 N.Y. 462, 55 N.E. 2; Farmers' Bank v. Whitehill, 16 Serg. & R. 89; Dr. Harter Medicine Co. v. Hopkins, 83 Wis. 309, 53 N.W. 501.

A nonexpert is not competent to testify as to the genuineness of handwriting where his opinion is founded wholly on the comparison of the handwriting in question with other genuine handwritings. 6 Enc. Ev. 394; Spottiswood v. Weir, 80 Cal. 448, 22 P. 289; Clark v. Wyatt, 15 Ind. 271, 77 Am. Dec. 90; Mixer v. Bennett, 70 Iowa 329, 30 N.W. 587; First Nat. Bank v. Lierman, 5 Neb. 247; Remington Paper Co. v. O'Dougherty, 81 N.Y. 474; Jarvis v. Vanderford, 116 N.C. 147, 21 S.E. 302; Wimbish v. State, 89 Ga. 294, 15 S.E. 325.

The issues as made up by the pleadings have not been fairly submitted under correct and proper instructions, and defendant, by the erroneous instructions of the court and by the rulings of the court on the admission of evidence and upon the trial in other respects, has not had that fair trial to which she is entitled. Putnam v. Prouty, 24 N.D. 517, 140 N.W. 93; Moline Plow Co. v. Gilbert, 3 Dak. 239, 15 N.W. 1; Owen v. Owen, 22 Iowa 270; Forzen v. Hurd, 20 N.D. 42, 126 N.W. 224; Barton v. Gray, 57 Mich. 622, 24 N.W. 638.

The creditor has the burden of proving authority for the application of money received by him, when the same is questioned. 2 Enc. Ev. 808, 809 et seq.; Boyd v. Jones, 96 Ala. 305, 38 Am. St. Rep. 100, 11 So. 405.

Or where there is only one debt, why the payment made was not applied on it. Mann v. Major, 6 Rob. (La.) 475; Hill v. Pettit, 23 Ky. L. Rep. 2001, 66 S.W. 188; 9 Enc. Ev. 703, et seq.; Hansen v. Kirtley, 11 Iowa 565; Dougherty v. Deeney, 45 Iowa 443.

Forbes & Lounsbury and O. S. Sem, for respondent.

Where error which has occurred on the trial was occasioned or invited by the appellant, he is estopped to complain. 3 Cyc. 242.

The plea of payment in the answer is an affirmative one, and the burden was upon appellant to establish such payment. 22 Am. & Eng. Enc. Law, 537 and cases cited, 587; 9 Enc. Ev. 700; Atlantic Dock Co. v. New York, 53 N.Y. 67; Gray v. Herman, 75 Wis. 453, 6 L.R.A. 691, 44 N.W. 248; Ketelman v. Chicago Brush Co. 65 Neb. 429, 91 N.W. 282.

The court submitted the question of payment to the jury and the jury found for respondent. If errors were committed, the supreme court will not grant reversal unless it clearly appears that they were prejudicial. 2 Enc. Pl. & Pr. 500; S. J. Vidger Co. v. Great Northern R. Co. 15 N.D. 501, 107 N.W. 1083.

Counsel for appellant brought out themselves the very evidence to which they now object. They are estopped to raise the question. 3 Cyc. 242; Pyke v. Jamestown, 15 N.D. 157, 107 N.W. 359; Reisch v. People, 229 Ill. 574, 82 N.E. 321; Jensen v. Sheard, 49 Wash. 593, 96 P. 2.

The trial court has the right to strike out evidence without a motion and without stating any ground or reason for so doing. 9 Enc. Ev. 134, and cases cited; Jones, Ev. De Luxe ed. §§ 172, 173 and 893.

It is the duty of the court to see that answers of witnesses to questions are both definite and responsive. Kielbach v. Chicago, M. & St. P. R. Co. 13 S.D. 629, 84 N.W. 192; State v. Carpenter, 124 Iowa 5, 98 N.W. 775; Christensen v. Thompson, 123 Iowa 717, 99 N.W. 591.

There was ample proof to support the verdict. 3 Cyc. 242; Hillman v. Hulett, 149 Mich. 289, 112 N.W. 918; Pyke v. Jamestown, 15 N.D. 157, 107 N.W. 359.

OPINION

BURKE, J.

In the year 1910, defendant owned and operated a farm in Sargent county, North Dakota, containing something over 1,000 acres. In March of that year, while upon a visit in Missouri, she met plaintiff, who was a married man with two small children. While there an arrangement was made between the two, whereunder plaintiff brought his family to defendant's farm in North Dakota.

Plaintiff's version is as follows:

She wanted me to come to North Dakota to work on her farm as foreman, and she was to give me $ 30 a month and furnish transportation to Milnor, and I told her,--asked her if I would have to pay the car fare, and she said "Yes," and then I told her I would not come; then she said she was willing to pay $ 30 a month and furnish me transportation to Milnor, and that at any time either party was dissatisfied the money was due. . . .

Q. You say that your arrangement with the defendant, Miss Blew, in this case, was that she should pay you $ 30 a month and pay the transportation for yourself and family to Milnor?

A. For myself.

Q. Yourself alone?

A. Yes.

Q. Not for your family?

A. No.

Q. Just for yourself?

A. Yes.

The defendant's version is that she was to pay him $ 30 a month for an entire year, which should include his wife's labor, and that she was to advance railroad fare and pay a $ 23 store bill which plaintiff owed there, but that the railroad fare and the store bill were to be reimbursed her from his wages. There is no substantial dispute that defendant advanced $ 47.75, which paid for plaintiff and his wife and a half-fare ticket for one of the children, and there is likewise little dispute that defendant's brother signed a note with plaintiff for the store bill aforesaid, and that defendant later paid the note. Upon reaching North Dakota, plaintiff continued in the employ of the defendant until the 9th of August, when a dispute arose between himself and the defendant, regarding which plaintiff testifies:

Q. Go right on and tell what she said and what you said.

A. She wanted me to go down to the machine and haul bundles, and I refused to go off the place. I didn't think it was my place, and she said I could haul bundles or quit, so I quit,--went to settle up at the house,--she had a little house out west of the big house, and she told me to get my book and she would settle. . . . I got a settlement out of her. She told me what her account was for, and I saw it was all right, and she figured up the store account and stuff she had paid cash for, and she figured up the stuff and it came to $ 3.66, and that was taken up and $ 20 in cash.

Q. What amount, if any, was found due you?

A. $ 107.29.

Q. What did she say to this?

A. Why, she told me she would pay it and started to write a check, and her brother came out of the granary and told her not to pay; that they had no money in the bank.

Q. What date was that?

A. The 9th of August.

Miss Blew's version is as follows: "He said my brother had put him on a rack to go out and work, and he said he was one of the regular men, and he did not think it was fair to put one of the month men on a rack to go out and work when we had higher-priced men that were getting the going harvest wages; that he was just getting the going wages, and I said I did not think it would make any difference to my brother if he would take a grain tank,--we had just begun threshing, the machines had pulled on the place before dinner, and they were just going out threshing,--one tank had gone out and another one was to go out,--and I said to him, 'Is your team harnessed up?' and he said 'Yes,' and I wanted him to hitch onto a grain tank; 'it would be all right with my brother,' I says, 'if it is not I will make it all right,--you go out on a grain tank, it won't make a bit of difference.' And then he said 'No.' He would not do it unless I would give him $ 2.50 a day. That is what he asked me and I says 'I can't do it.' I says 'I can't,' and I talked to him about five minutes trying to induce him to take out a grain tank, and he would not do it. . . . Q. At that time, did you tell Tharp that he might quit? A. No."

It is admitted that defendant paid plaintiff the sum of $ 20 in cash and advances in groceries to the amount of $ 3.75 after his arrival in North Dakota. That plaintiff knew of the store bill in Missouri being paid appears from a letter introduced in evidence and written to him by De Bold Brothers, which reads as follows:

Mt. Rose, Mo., September 5, 1910.

Mr. Jess Tharp,

Milnor, North Dakota.

Dear sir:--

Yours of the 2d at hand, in regard to the note. Before you left here, I gave you a bill of your account, and you gave me your note for the amount, which was $ 22.52, March 29, 1910, with Adden Blew security; interest on note up to August 25 is 75 cents, making a total of $ 23.27. I gave this note to Bertie Blew over here, and she sent it to her sister Gertie and Bertie paid us here for that amount. If Gertie has the note in her possession,--or whoever...