Page:North Dakota Reports (vol. 1).pdf/47

 at the request of the defendant, and without any time being agreed upon for payment,” a certain sum of money; third, demand of payment, and refusal. The answer puts in issue every allegation of the complaint.

After the jury had been sworn, and when the first witness was produced, the defendant objected "to the introduction of any evidence under the complaint in this action; for the reason that the facts therein stated do not constitute a cause of action." The objection was overruled, and this ruling is assigned as error. The ruling cannot be reviewed: for the reason that proof was introduced tending to establish the facts not alleged, and no objection was made to such proof because of such insufficient allegation. Learned counsel probably had in mind the fact that there was no specific allegation that plaintiff loaned the money as administratrix. When proof of that fact was offered, he should have made his objection for that reason. His general objection does not reach the point, and the proof being received without objection cures the defect in pleading, if any. Thoreson v. Harvester Works, 29 Minn. 341, 13 N. W. Rep. 156; Isaacson v. Railroad Co., 27 Minn. 463, 8 N. W. Rep. 600.

Thirteen errors are assigned upon the rulings of the court on defendant’s objections to testimony. These errors need not be reviewed in detail or the evidence reproduced. They are all comprehended in one of two classes: First, where plaintiff sought to prove specific acts or statements of the alleged agent, Newhauser, before the agency had been established. These went simply to the order of proof, and were clearly within the discretion of the court. Com. v. Dam, 107 Mass. 210; Hutchins v. Kimmell, 31 Mich. 126. The second class were instances where plaintiff sought to prove that Newhauser had borrowed money of other parties for defendant with a view to showing authority in Newhauser to borrow money. It was the expectation of the learned judge of the district that these transactions would be brought to the subsequent knowledge of defendant; and, indeed, such was the effort of plaintiff’s counsel. Under such circumstances, the objections went to the sufficiency and not to the competency, of the proof, and were properly overruled.