Page:North Dakota Reports (vol. 48).pdf/785

 The jury found a verdict in favor of plaintiff on an express contract, and it is held that the verdict is well sustained by the evidence.

Opinion filed Jan. 30, 1922.

Appeal from the District court of Stutsman county; Coffey, J.

Affirmed.

A.W. Aylmer and A. L. Aylmer, for appellant.

Defendant contends that the statements of plaintiff (as to the times the old man stayed at her place, being the times for which plaintiff is making this claim against the old man’s estate) come within the definition of a “transaction with the deceased,” and were therefor incompetent and prejudicial. Sheldon v. Thornburg, 133 N. W. 1076 (Iowa); Wetmore v. Thurman, 141 N. W. 482; Druey v. Baldwin, 172 N. W. 663, (N. D.); 7871-1913 N. D. Code; Druey v, Baldwin, 172 N. W. 663 (N. D.); Regan v. Jones, 105 N. W. 614 (N. D.); First Nat’l Bank v. Hilleboe, 114 N. W. 1086 (N. D.) ; Cardiff v. Marquis, 114 N. W. 1088 N.D. or

Plaintiff can testify that the book is her account book, but cannot testify that the items are correct, or explain them. 40 Cyc. 2326 (39); 49 Cyc. 2326 (40) ; Dyer v. Minturn 189 Pac. (1046); Coburn v. Parrett 150 Pac. (786).

“So long as the chances are equal that it may have had some effect one way or the other, the party excepting is entitled to the principal that irrelevant testimony should be shut out from the jury. Jones on Evidence, Vol. 5, § 897, (63) ; Jones Vol. 5, § 895 note (42) ; 32 N. D. 263 (272) 155 N. W. 78.

Knauf and Knauf for respondent.

Rostnson, J. This is a second appeal from a verdict and judgment against the defendant for 612 days’ board and lodging at $1 a day. The board was furnished to Johan Krapp, deceased, the father-in-law of the plaintiff, and the defense is that because of the relationship the deceased should have been given free board, unless he expressly promised to pay for it. The first verdict and judgment was set aside and a new