Page:North Dakota Reports (vol. 1).pdf/186

 liver this wheat.” Motion denied and defendant duly excepted. A bill of exception was settled, and a motion for a new trial was denied whereupon judgment was entered for plaintiff, and defendant appealed. Among the errors assigned in this court are the following: (1) The court erred in admitting, against defendant’s objection and exception, (a) evidence of the statements of one Lighthall that defendant had received a quantity of wheat from Gregg McCann; and (6) evidence of a demand of the wheat in question made upon said Lighthall. (2) The court erred in refusing to direct the jury to find in favor of defendant.

To recover in the action, it was necessary that the plaintiff should show, by evidence legally competent, that a certain quantity of wheat belonging to the plaintiff had been delivered to the defendant at its elevator in La Moure, and that upon demand therefor the defendant had failed to return the wheat, or account for its value. The only evidence in the case which was offered to establish the delivery of the wheat to defendant was certain statements and declarations testified to by the plaintiff as having been made by one Lighthall in a certain conversation between plaintiff and Lighthall had at defendant’s elevator, and hereinbefore set out in the evidence. It does not appear distinctly from the testimony at what precise time the conversation in question was had with reference to the time when McCann delivered the wheat to Lighthall at the elevator, but it was had some hours subsequent to the close of the wheat transaction between McCann and Lighthall, and twenty-four hours after such wheat transaction with McCann was completed. It is important to inquire what relation Lighthall sustained to the defendant when he made the statements testified to by the plaintiff, and which are relied on by the plaintiff, to fix defendant’s liability as a principal. The only evidence in the case shedding any light on this inquiry comes from the plaintiff, who testifies upon the point as follows: “I do not know what Mr. Lighthall’s authority was as agent of the defendant. All I know is what I saw him him do. The only things I saw him do was to receive wheat and issue tickets for wheat received.” Plaintiff further testifies that when he visited the elevator, and had the conversation referred to, Lighthall was then engaged in buying and taking in grain, and