Page:North Dakota Reports (vol. 48).pdf/277

 It is true, plaintiff did not in so many words say that he was the owner or lessee of the threshing machine, but he did say that he was engaged in the business of threshing; that in the fall of 1920 he operated a threshing machine, with which he threshed grain for others; that he made a contract with Hakanson to thresh his grain; that he did thresh it, and that Hakanson paid him in part for such threshing. It appears, therefore, without contradiction, that the plaintiff was engaged in threshing grain for others, with a certain threshing machine then in his possession and under his control, and that he threshed the grain in question with such machine. These facts in our opinion established prima facie that the plaintiff was the owner or lessee of the threshing machine. In absence of evidence to the contrary, it is presumed, “That things which a person possess are owned by him.” And “that a person is the owner of property from exercising acts of ownership over it.” Subds. 11 and 12, § 7936, C. L. 1913.

See, also, Dahlund v. Lorentzen, 30 N. D. 275, 152 N. W. 684.

As already indicated, a certain colloquy occurred between counsel for the respective parties during the trial of the action with reference to the lien statement. The purpose of the statements then made was to dispense with the necessity of formal proof of the filing of the lien statement. After the statements were made the parties and the court proceeded on the theory that the lien statement was part of the evidence adduced in the case. No question was raised in the trial court that the lien statement was not part of the evidence in the case. The question cannot be raised for the first time on appeal.

“The theory pursued in the trial court as to the admission of or necessity for particular evidence will be adhered to on appeal. Thus, where an action is tried on the theory that an instrument in suit or other document has been introduced in evidence, it will be so considered on appeal, although, in fact, it was not formally introduced.” 3 C. J. 734, 735.

The lien statement shows that plaintiff threshed, in all—

“1,900 bushels of wheat, 1,050 bushels of oats, 150 bushels of barley, and 125 bushels of rye, on certain described land in Ransom county in this state; that such threshing consumed 49 hours, at an agreed price of $20 per hour, making an aggregate charge for such threshing of $980, on which a credit was allowed for cash and labor.”

The statute relating to thresher’s liens provides: