Page:North Dakota Reports (vol. 3).pdf/227

 year at the same wages. It is not conceivable that a man of ordinary business prudence should unconditionally bind himself to pay nearly double the ordinary wages. Under the facts and circumstances, as disclosed by the evidence, we are clear that, if the jury found that the positive promise. alleged in the complaint was in fact made, such finding was without any sufficient support in the evidence, under the rule announced by this court in Fuller v. Elevator Co. 2 N. D. 220, 50 N. W. Rep. 359, and the case must be reversed under the first assigned error. If, on the other hand, the jury returned a verdict for respondents, without finding the existence of such positive promise, then the verdict was contrary to the instructions of the court, and the case must be reversed under the sixth assignment.

It is proper to add that the verdict of the jury may have been somewhat influenced by reason of certain matters raised under the third assignment. One Bruce was called as a witness for respondents. _ He seems to have been the financial agent of Mr. Ober. He was asked whether or not, at any time during the summer of 1886, he received from Mr. Aitchison, for the credit of Mr. Ober, any money. This was objected to by counsel for appellant as irrelevant and immaterial, and the objection was overruled. In answer the witness said that in the summer of 1885 he received $575 from Mr. Aitchison for the credit of Mr. Ober; and by other questions, all answered against appellant's objections, this fact was made prominent before the jury. If respondents were seeking a recovery under the positive promise set forth in the complaint,—and under the instructions they could recover on no other ground,—it was entirely immaterial whether subsequent to such promise appellant paid Ober any money. He was equally liable whether he did or did not. Such fact had no possible bearing upon the issues made by the pleadings. And yet the Prejudice to appellant of such testimony, after the evidence as to the contingent character of the promise had been given, is too evident for discussion. The admission of that testimony was