Page:North Dakota Reports (vol. 48).pdf/536

 on this appeal, the defendant asks that the specifications of error be amended so as to include therein a staterhent that the trial court erred in overruling defendant’s motion to strike out the evidence relating to the statements made by Hoffein indicating that he, as defendant’s representative, purchased the wheat in controversy. In other words, it is sought to amend the specifications of error so as to assign a ground for a new trial which was not presented at all to the trial court. This, in our opinion, cannot be done. The ruling on the motion to strike out the evidence, if erroneous, was an error of law occurring at the trial which might properly have been raised and presented on motion for a new trial. § 7660, C. L. 1913. The defendant, however, did not see fit to specify such ruling as error on the motion for a new trial; and by failing to do so the error, if any, was waived and it may not be presented for the first time in this court. State v. Glass, 29 N. D. 620, 151 N. W. 229. See. also, concurring opinion in Cohn v. Wyngarden, ante 344, 184 N. W. 575

The assignment that the trial court erred in denying defendant's motion for a directed verdict is wholly without merit, as the record discloses that no such motion was made.

Did the trial court err in refusing to grant a new trial on the ground of insufficiency of the evidence? We think not. It is undisputed that the plaintiff placed in the granary belonging to the defendant the quan- tity of wheat in controversy; that the defendant was promptly informed of this fact; that he directed three different persons to take away quantities of the wheat, and that one of these persons took away the last wheat contained in the granary. It is true defendant claims that the aggregate amount taken away by all three persons was less than the quantity of wheat supposed to have been placed there as defendant’s share, according to the threshing machine measure. The three tenants who hauled the grain away from the granary were not called as witnesses, and there is no showing how much any of these parties hauled except the testimony of the defendant as to what they informed him they had hauled, or he had directed them to take. It is undisputed, however, that all of the wheat has been taken away. And, so far as the evidence in this case shows, the only wheat that was taken and all the wheat that was taken was taken at the direction of the defendant by his various tenants. Upon this state of facts we are of the opinion that the defendant has established the cause of action alleged in this complaint. In arriving at this