Page:North Dakota Reports (vol. 1).pdf/48

 When plaintiff rested in chief, defendant moved the court to instruct the jury to return a verdict for defendant, assigning as reasons therefor that "there is no evidence showing that Ferdinand Newhauser had any authority from defendant to borrow money on his credit, and that there is no evidence in the case showing that defendant authorized, or had any notice or knowledge of the fact of this loan, nor authorized the same, directly or indirectly." The motion was overruled, and this ruling is assigned as error. When his motion was overruled, defendant proceeded to introduce his testimony, and make his case. Granting that it was error to deny this motion, yet, as defendant subsequently put in his evidence, and as the entire case was given to the jury, and found for plaintiff, the former error is cured. Railway Co. v. Cummings, 106 U. S. 700, 1 Sup. Ct. Rep. 493; Insurance Co. v. Crandal, 7 Sup. Ct. Rep. 685; Association v. Willard, 48 Cal. 617; Bradley v. Poole, 98 Mass. 169. This rule is not uniform. The contrary is held in New Jersey and apparently in some other states; but we deem the proposition sustained by the better authorities, and certainly the better reason. All the authorities denying this rule hold that, if the defect in plaintiff's proofs be supplied by the subsequent testimony introduced by defendant, the error in ruling upon the motion is cured. The difficulty with that position, in practice, is that, whenever the ruling upon such motion comes up for review in an appellate court, such court is compelled to explore the subsequent record to discover whether or not the defect has been cured. When the defendant, at the close of plaintiff's evidence, moves for a verdict, and such motion is overruled, and the defendant elects to put in his testimony, it is only reasonable that he should be required to renew his motion upon all the evidence, if he deem the defect not supplied; and, upon the ruling upon the latter motion, the entire case could properly be reviewed. We have discussed the foregoing assignment because it is properly presented on the record, and because we wished to settle the rule in a matter that arises so frequently under our practice.

When the evidence was closed, defendant again asked the court to instruct the jury to return a verdict for the defendant.