Page:North Dakota Reports (vol. 48).pdf/535

 by such persons was about 75 bushels less than defendant’s share according to the machine measure. At the close of all the testimony, defendant moved that all evidence relating to the statements made by Hoffein indicating a purchase of the wheat be stricken out, on the ground that there was no evidence tending to establish authority on the part of Hoffein to make any such contract in behalf of the defendant. This motion was denied. The denial of such motion is the first error assigned by defendant on this appeal.

As already stated, defendant moved in the alternative for judgment notwithstanding the verdict, or for a new trial, and this appeal is taken both from the judgment and from the order denying the alternative motion for judgment notwithstanding the verdict or for a new trial. That motion was based upon the following grounds:

“(1) Error in law occurring at the trial and excepted ‘to by the defendant, as follows:

“That the court erred in overruling defendant’s motion for a directed verdict made at the close of all the testimony.

“(2) Insufficiency of the evidence to justify the verdict and judgment.

“The particulars in which the evidence is claimed to be insufficient are as follows:

(a) That there is no evidence in the record of any contract or agreement between the plaintiff and the defendant, whereby the defendant purchased the grain described in the complaint or any portion thereof.

“(b) There is no evidence in the record showing that the witness Hoffein, or any other person acting for or on behalf of the defendant has authority in writing or otherwise to make a contract with the plaintiff to purchase for the defendant the wheat described in the complaint or any portion thereof.

“(c) That the undisputed evidence shows that, if there was any understanding on the part of the plaintiff that the defendant was to purchase the wheat, that understanding was removed, and the plaintiff and defendant agreed that the wheat might be removed from the defendant’s granary by the plaintiff, which agreement was made long before the commencement of this action.”

In the specifications served with the notice of appeal the defendant, in addition to the above, specified as error the denial of the motion for judgment notwithstanding the verdict or for a new trial. In his brief