Page:North Dakota Reports (vol. 48).pdf/561

 against plaintiff were in evidence, oral testimony whether an item was in issue in the former action held admissible.

1. In an action to recover for goods and labor furnished, where a cropper recovered against his farm owner in a former action the goods and labor furnished by him, and the owner in this action recovered for his goods and his labor furnished to the cropper, and where, in each action, in the former, the owner, and, in the latter, the cropper, claimed an agreement to mutually offset their accounts for such goods and labor, which was disallowed by the jury upon the recovery allowed, it is held, for reasons stated in the opinion—

That the trial court properly received oral testimony concerning the presentation of a specific item for hauling lumber in the former action.

Evidence—held that court properly took judicial notice of former case be- tween the same parties.

2. That the trial court properly took judicial notice of the former case upon being requested and upon electing so to do.

Recovery—held not limited by recovery in former action.

3. That the recovery of the owner in this action was not limited to the amount of the recovery of the cropper in the former action.

Action in District Court, Bottineau County, Burr, J.

From an order denying a new trial the defendant has appealed.

Affirmed.

W. H. Adams, for appellant.

W. J. Cooper, for respondent.

, J. This is an action upon an account for goods and labor furnished. The defendant has appealed from an order denying a new trial. The facts, necessary to be stated, are as follows: The plaintiff owned several quarters of land in Bottineau county. During the years IgI2 to 1917, inclusive, he made farm contracts with the defendant, as cropper, to crop the lands upon shares. This action is brought to recover for hay and grain furnished by the owner to the cropper, and for the labor of such owner and his horses, rendered in connection with the farming of the lands. This is the second action between the parties. In the