Page:North Dakota Reports (vol. 48).pdf/276

 contracted with the above-named H. O. Hakanson to do the amount and kind of threshing specified in the above account at the price therein named; that the threshing was actually done according to the contract, and the price charged therefor, was not in excess of the price usually charged for such services; that each quantity of grain specified on the above account was grown on the several tracts of land therein described.”

Plaintiff was the first witness called. In the early part of his direct examination he was asked on what date he filed the thresher’s lien. Defendant’s counsel objected to this question, on the ground that it was not the best evidence, whereupon the court stated that the lien would be the best evidence. No further questions were asked along this line, but at the close of plaintiff’s testimony plaintiff’s counsel said: “We call the register of deeds for the purpose of proving the thresher’s lien.” Whereupon defendant’s counsel said:

“If you will say that the copy of the lien attached to the complaint is a true and correct copy of the original lien filed in the office of the register of deeds, and that the same was filed on the day and hour thereon set forth, you need not call the register of deeds.”

In response thereto plaintiff’s counsel made the following statement:

“I, J. V. Barklund, attorney for the plaintiff, hereby state in open court that the copy of the lien which is attached to the summons and complaint in this action is a true and correct copy of the lien now on file in the register of deed’s office, which lien was filed on the 27th day of October, 1920, at 8:35 a. m.”

These statements appear on pp. 7 and 8 of the transcript of the evidence. The transcript of the evidence covers in all about 40 pages. At no time during the remainder of the trial—i. e., at no time after such statements were made, was the point made, nor was it even intimated, that the lien statement had not in fact been offered and received in evidence. The record indicates that counsel and court all deemed it to have been properly admitted in evidence. Thus, in the motion for a directed verdict made at the close of plaintiff’s case, defendant’s counsel, among other grounds, specified:

“That there is no definite evidence upon which the jury can determine the actual amount, if any, due under the lien described in the complaint and offered in evidence.” ‘Transcript, p. 32.

Under the facts and circumstances established by the record in this case, we believe that appellant’s first and second points are without merit.