Page:North Dakota Reports (vol. 48).pdf/563

 which he claimed the right of recovery in the former action. The jury returned a verdict for $650 in favor of the plaintiff.

It is the contention of the defendant cropper that the trial court erroneously received evidence concerning the item of a charge for hauling lumber in the former action, improperly took judicial notice of the proceedings in the former action, and erroneously charged the jury in that respect. It is also contended that the evidence is insufficient to sustain the verdict, for the reason that if it be assumed that the cropper’s items recovered in the former action are the items he attempts to offset in this action, then the amount of the same did not exceed $410.65 in the former action, and, in this action, the recovery of the owner is $369.60 in excess thereof. That in accordance with the plaintiff's own testimony he can recover no more than the cropper recovered. We are of the opinion that the defendant’s contentions cannot be sustained. The trial judge in denying the motion for a new trial filed an extensive memorandum opinion. He modified the verdict by striking therefrom an item of $50 and interest, concerning oats furnished, which he permitted the plaintiff to establish at the trial after amendment of its bill of particulars. He stated that in the former action the cropper sued for various items of labor and goods furnished (amounting to over $1,290 as alleged). The cropper secured a verdict for $1,119.05. That in the former action the owner admitted owing the cropper $708.40. That the owner in such action attempted to set up a counterclaim for his goods and services rendered, but it was disallowed through the objection of the cropper, because it was attempted to be asserted by way of amendment on the eve of the trial. That in such action the owner claimed that the goods and services rendered by one were to be offset by those rendered by the other. The jury, however, in such action did not find with the owner upon such claim, and allowed the cropper $400 above the amount admitted by the owner. That, in effect, the jury did not mutually offset the accounts of the parties. That what the cropper recovered in such action was not the difference between the two accounts of the parties. That the owner, excluded in the former action from asserting his claim, was not excluded from, or limited to, a recovery in this action of the amount only that the cropper had recovered in the former action. That the court did take judicial notice of the former case, because it became necessary so to do when the cropper in this case claimed an agreement to mutually offset the accounts. We are of the opinion that the trial court did not err. The