Welter v. Leistikow

• Decision Date: 16 May 1900
• Citation: 83 N.W. 9,9 N.D. 283
• Court: North Dakota Supreme Court

83 N.W. 9

9 N.D. 283

JOHN WELTER v. WILLIAM C. LEISTIKOW

Supreme Court of North Dakota

May 16, 1900

Appeal from District Court, Walsh County; Sauter, J.

Action by John Welter against William C. Leistikow. Verdict for plaintiff. From an order granting a new trial, plaintiff appeals.

Affirmed.

Spencer & Sinkler, for appellant.

Swiggum & Myers, for respondent.

OPINION

BARTHOLOMEW, C. J.

This is an appeal from an order granting a new trial in an action tried before a jury, and in which a verdict had been returned for plaintiff. That verdict was set aside, and plaintiff appeals. There is nothing in the case to advise us upon what particular ground a new trial was granted. The motion for the same covered a multitude of grounds, but, as there was an irreconcilable conflict in the evidence, we conclude that the court based its order upon supposed errors in the instructions. Error was urged as to the greater portion of the instructions given. This action was upon an account to recover for some threshing which the plaintiff claimed to have done for defendant in 1894. The answer was a general denial.

To understand the attack made upon the instructions, some portion of the testimony must be given. Plaintiff in his examination in chief testified as follows: "I owned and operated a threshing machine during the threshing season of 1894. Did threshing for the defendant, Leistikow, on the 24th day of August of that year. Made the contract to do the threshing with Mr. Leistikow in the office of his mill, in the City of Grafton, about a week or ten days before the date mentioned. I went in there, and asked him for the job of doing his threshing. He said, 'The wheat was not quite fit to thresh yet; it was a little soft;' but he agreed to let me have the job, and said that as soon as it was ready to thresh he would let me know. The threshing was done on what was known as the 'Schuman Farm.' On the 23d day of August, 1894, Mr. Leistikow sent Mr. Hall out to me where I was threshing, on my brother's farm, and he asked me if I could get ready to go onto Mr. Leistikow's farm in the morning, and I told him, 'Yes.' He said, 'All right, I have got to go and get teams to take the wheat from the machine,' and he drove off. Mr. Hall was at that time, I think, Mr. Leistikow's wheat buyer at the mill." On rebuttal, he reiterated as follows "I made the bargain for this threshing myself with Mr Leistikow in Mr. Leistikow's mill office in Grafton. The defendant testified as follows: "Know John Welter, the plaintiff. Knew him in summer and fall of 1894. There never was a word that year or any other year regarding any threshing, and when he says he saw me he simply lies. Plaintiff's father, Nicholas Welter, came to me some time in the neighborhood of the 20th to the 22d of August, 1894 and inquired if I had hired any one to do my threshing on the Schuman land. I told him I had hired John Dipple. He said 'My machine is lying up doing nothing, and I want to get it started, and I would like your job.' I said, 'I can't give it to you, Nick, because I have promised it to John Dipple; he was here a day or two ago.' He said, 'Leistikow, I owe you a note, and can't pay it unless you let me do the threshing.' John Welter was not there at that time. I told Mr. Welter that Dipple offered to do the threshing for 8 cents, which was, I understood, the regular price; and, further, that I would have to find out first whether Dipple would relinquish me from the promise I had made him that he could do the threshing. After that I sent James Hall out to see whether Dipple would consent to let me off, because I wanted to pay the threshing, if possible, through the Welter note." This...