Updegraff v. Tucker

• Decision Date: 18 December 1912
• Citation: 24 N.D. 171,139 N.W. 366
• Parties: UPDEGRAFF v. TUCKER.
• Court: North Dakota Supreme Court

24 N.D. 171

139 N.W. 366

UPDEGRAFF

v.TUCKER.

Supreme Court of North Dakota.

Dec. 18, 1912.

Syllabus by the Court.

In an action at law, where a jury has been waived, the findings of fact of the trial court have the force of a verdict, and such findings will not be disturbed when they have substantial support in the evidence.

On an appeal from an order denying a motion for a new trial on the grounds of alleged insufficiency of the evidence to sustain the findings of fact and of alleged errors of law occurring at the trial, held, that a failure of the appellant to incorporate in the statement of the case a specification of the particulars wherein such evidence is alleged to be insufficient, and of such alleged errors of law, requires us, as well as the trial court, to disregard such statement, under the provisions of section 7058, Rev. Codes 1905.

Notwithstanding appellant's failure to incorporate any specifications of particulars in the settled statement as required by section 7058, Rev. Codes 1905, the evidence has been examined, and it is held, that the findings of fact are amply supported thereby.

Appeal from Stutsman County Court; J. U. Hemmi, Judge.

Action by O. P. Updegraff against H. N. Tucker. From an order denying a motion for new trial after judgment for defendant, plaintiff appeals. Affirmed.C. S. Buck, of Jamestown, for appellant. George H. Stillman, of Courtenay, for respondent.

FISK, J.

[1] This action was tried in the county court of Stutsman county and resulted in a judgment for the defendant. A motion for a new trial was made and denied, and the appeal is from the order denying such motion. The action was brought to recover a balance claimed to be due plaintiff from defendant for services rendered and expenses incurred under an alleged promise on defendant's part to pay the plaintiff therefor. Defendant denies any personal liability and in effect alleges that in employing the plaintiff he acted, not in a personal capacity, but as the representative and agent of certain principals, and this, with plaintiff's full knowledge. The issues are clearly defined in the pleadings. A jury was waived by the parties, and at the conclusion of the trial the county judge made findings of fact and conclusions of law favorable to the defendant. Such findings of fact are, of course, conclusive in this court if there is any substantial conflict in the evidence. We have examined the record with care and are fully convinced that such findings are in accordance with the weight of the testimony and must therefore be accepted as final in this court.

Such findings of fact are as follows: “The court finds: That in each of the following named towns, to wit, Fargo, Casselton, Courtenay, Carrington, Fessenden, Valley City, Jamestown, and Grand Forks, there was, at the time of the making of the contract set forth in the complaint of the plaintiff, and still is, a corporation for the purpose of maintaining and having horse races in the several towns named. That the said several corporations annually elected or chose a person or representative to act for said corporation in connection with a representative from each of the other towns, for the purpose of advertising races for the ‘Circuit’ and employing a starter or starters for the races to be held in the several towns, and to fix the dates of such races, so that there would be no conflict, and such other matters as might be incident thereto. That the several representatives, so chosen by the several corporations, organized by electing a president, a...