Page:North Dakota Reports (vol. 3).pdf/223

 et al vs. .

Opinion filed March 7th, 1893.

Verdict—Contrary to Evidence or Instructions.

A verdict that must be cither without support in the evidence, or contrary to the instructions of the court, cannot be permitted to stand.

Irrelevant Testimony—Prejudice.

The admission of testimony that has no bearing upon the issues as made by the pleadings, but which, from its nature, would tend to prejudice the jury against the party objecting, constitutes reversible error.

Appeal from District Court, Cass County; McConnll, J.

Action by John McMillan and Christina McMillan against John Aitchison. Plaintiffs had judgment, and defendant appeals.

Reversed.

Francis & Southard, for appellant.

Benton & Amidon, for respondents.

, C. J. To reverse a judgment against him, based upon a verdict, the defendant and appellant assigns six errors: First, that the evidence was insufficient to support the verdict, specifying wherein it was insufficient; second, that the complaint did not state facts sufficient to constitute a cause of action; third, error of the court in ruling upon the admission of evidence; fourth, error of the court in refusing to nonsuit, or direct a verdict for defendant; fifth, error of the court in refusing an instruction asked by appellant; and, sixth, that the verdict was contrary to the evidence and instructions. The second assignment is not well taken, and merits no discussion, beyond what is incidental to the disposition of the other assignments.

The respondents are husband and wife, and their complaint alleges that on and prior to April 5th, 1885, one Ober was indebted to respondents for work and labor performed for him at his request, in the sum of $400; that on said 5th day of April, 1885, and while said indebtedness was due and unpaid, the appellant, Aitchison, undertook and agreed to pay said respondents