Page:North Dakota Reports (vol. 48).pdf/532

, J. The complaint in this case is as follows:

“Comes now the above-named plaintiff, and for his cause of action herein complains and alleges:

“I. That on or about the 4th day of September, 1919, plaintiff£ sold and delivered to defendant in granary on premises belonging to defendant near Kenmare, Ward county, N. D., a quantity of durum wheat for seed purposes, to wit, 5474 bushels of durum wheat, the same being delivered by plaintiff to defendant at defendant’s request.

“II. That said wheat was reasonably worth the sum of $2.66 per bushel, or a total of $144.30; that no part of said sum has been paid although demand was made upon defendant prior to the commencement of this action.

“Wherefore, plaintiff prays judgment against the defendant for the sum of $144.30, and interest from this date, and for his costs and disbursements incurred herein.”

The defendant interposed a general denial. The case was tried upon the issues so framed. The jury returned a verdict in favor of the plaintiff. The defendant moved in the alternative for judgment notwithstanding the verdict or for a new trial. The motion was denied, and the defendant has appealed to this court from the judgment and from the order denying his motion for judgment non obstante, or for a new trial.

In his brief on this appeal, the appellant says:

“There is but one real point in this appeal. While there are two classes of errors assigned, the real point is the lack of evidence. The first specification of error, as amended, is based on the refusal of the court to grant the defendant’s motion to strike out all the evidence on the part of the plaintiff regarding statements made by the witness Hoffein, to the effect that defendant wanted to buy or would buy the 54 bushels of wheat of the plaintiff which were deposited in the defendant’s granary. The second specification of error involves the sufficiency of the evidence generally. The motion to strike out the testimony of the plaintiff regarding Hoffein’s alleged transaction was made upon the ground that it did not show any agency, or any kind of authority in Hoffein to contract for the purchase of the grain on behalf of the defendant.”

A determination of the specifications so alluded to necessitates a consideration of the evidence. The evidence shows that the plaintiff was a tenant of the defendant during the season of 1919, occupying and cultivating certain lands and producing crops of grain thereon. Dur-