#### J. A. THARP v. GERTRUDE BLEW.

(151 N. W. 1.)

Plaintiff and defendant entered into a contract whereby plaintiff performed certain labor upon the farm of the defendant. In the trial below, the court *584gave certain instructions set forth in the opinion, which are examined, and, *Held:*

Instructions to jury — inadequate — confusing — misleading — new trial — verdict — reduction.

That said instruction as a whole is inadequate, confusing, and misleading, hut in view of the fact that this is the second appeal in this case to this court, and the interests of the parties demand that the matter be finally settled, it is ordered: That a new trial be granted, unless plaintiff, within thirty days after the receipt of the remittitur in the lower court, shall consent, in writing, to a reduction of the amount of the verdict to the sum of $35.10.

Opinion filed January 29, 1915.

Rehearing denied February 20, 1915.

Appeal from the District Court of Sargent County, *Allen,*J. from a judgment in favor of plaintiff. Defendant appeals.

Reversed on conditions.

*Wolfe &*Schneller, for appellant.

Appellate courts are inclined to overlook mere technicalities and irregularities in the conduct of the trial, where from the whole record it appears that they did not render the trial unfair or the result unjust. But where well established rules of evidence and procedure are violated and ignored, such a trial cannot be considered a fair trial, to which the aggrieved party is entitled at all times. Hearsay evidence was offered and admitted. This was reversible error. State v. Ah Lee, 18 Or. 540, .23 Pac. 424; ITopt v. Utah, 110 U. S. 574, 28 L. ed. 262, 4 Sup. Ct. Rep. 202, 4 Am. Orim. Rep. 417; Morell v. Morell, 157 Ind. 179, 60 N. E. 1093; Dixon v. Labry, 16 Ky. L. Rep. 522, 29 S. W. 21; Shaw v. People, 3 Hun, 272, 2 Cow. Grim. Rep. 200; 6 Ene. Ev. 443; Dysart Peerage Case,' L. R. 6 App. Cas. 489; Ellicott v. Pearl, 10 Pet. 436, 9 L. ed. 485; Amann v. Lowell, 66 Cal. 306, 5 Pac. 363; Warren v. Nichols, 6 Met. 261; Westfield v. Warren, 8 N. J. L. 249; Coleman v. Southwick, 9 Johns. 45, 6 Am. Dec. 253; Lent v. Shear, 160 N. Y. 462, 55 N. E. 2; Fanners’ Bank v. Whitehill, 16 Serg. & R. 89; Dr. Harter Medicine Co. v. Hopkins, 83 Wis. 309, 53 N. W. 501.

A nonexpert is not competent to testify as to the genuineness of handwriting where his opinion is founded wholly on the comparison of the handwriting in question with other genuine handwritings. 6 Ene. Ev. 394; Spottiswood v. Weir, 80 Cal. 448, 22 Pac. 289; Clark v. Wyatt, *58515 Ind. 271, 77 Am. Dec. 90; Mixer y. Bennett, 70 Iowa, 329, 30 N. W. 587; First Nat. Bank v. Herman, 5 Neb. 247; Remington Paper Oo. y. O’Dougherty, 81 N. Y. 474; Jarvis v. Vanderford, 116 N. 0. 147, 21 S. E. 302; Wimbish v. State, 89 Ga. 294, 15 S. E. 325.

The issues as made up by the pleadings have not been fairly submitted under correct and proper instructions, and defendant, by the erroneous instructions of the court and by the rulings of the court on the admission of evidence and upon the trial in other respects, has not had that fair trial to which she is entitled. Putnam v. Prouty, 24 N. D. 517, 140 N. W. 93; Moline Plow Oo. v. Gilbert, 3 Dak. 239, 15 N. W. 1; Owen v. Owen, 22 Iowa, 270; Eorzen v. Hurd, 20 N. D. 42, 126 N. W. 224; Barton v. Gray, 57 Mich: 622, 24 N. W. 638.

The creditor has the burden of proving authority for the application of money received by him, when the same is questioned. 2 Enc. Ev. 808, 809 et seq.; Boyd v. Jones, 96 Ala. 305, 38 Am. St. Rep. 100, 11 So. 405.

Or where there is only one debt, why the payment made was not applied on it. Mann v. Major, 6 Rob. (La.) 475; Hill v. Pettit, 23 Ky. L. Rep. 2001, 66 S. W. 188; 9 Enc. Ev. 703, et' seq.; Hansen v. Kirt-ley, 11 Iowa, 565; Dougherty v. Deeney, 45 Iowa, 443.

*Forbes & Lounsbury*and *O. 8. Sem,*for respondent.

Where error which has occurred on the trial was occasioned or invited by the appellant, he is- estopped to complain. 3 Cyc. 242.

The plea of payment in the answer is an affirmative one, and the burden was upon appellant to establish such payment. 22 Am. & Eng. Enc. Law, 537 and cases cited, 587; 9 Enc. Ev. 700; Atlantic Dock Oo. v. New York, 53 N. Y. 67; Gray v. Herman, 75.Wis. 453, 6 L.R.A. 691, 44 N. W. 248; Ketelman v. Chicago Brush Oo. 65 Neb. 429, 91 N. W. 282.

The court submitted the question of payment to the jury and the jury found for respondent. If errors were committed, the supreme court will not grant reversal unless it clearly appears that they were prejudicial. 2 Enc. PL & Pr. 500; S. J. Yidger Co. v. Great Northern R. Oo. 15 N. D. 501, 107 N. W- 1083.

Counsel for appellant brought out themselves the very evidence to which they now object. They are estopped to raise the question. 3 Cyc. 242; Pyke v. Jamestown, 15 N. D. 157, 107 N. W. 359; Reisch *586v. People, 229 Ill. 514, 82 N. E. 321; Jensen v. Sbeard, 49 Wash.. 593, 96 Pac. 2. •

The trial court has the right to strike out evidence without a motion and without stating any ground or reason for so doing. 9 Ene. Ev. 134, and eases cited; Jones, Ev. De Luxe ed. §§ 172, 173 and 893.

It is the duty of the court to see that answers of witnesses to questions are both definite and responsive. Bnelbach v. Chicago, M. & St. P. R. Co. 13 S. D. 629, 84 N. W. 192; State v. Carpenter, 124 Iowa, 5, 98 N. W. 775; Christensen v. Thompson, 123 Iowa, 717, 99 N. W. 591.

There was ample proof to support the verdict. 3 Cyc. 242; Hillman v. TIulett, 149 Mich. 289, 112 N. W. 918; Pyke v. Jamestown, 15 N. D. 157, 107 N. W. 359.

BuRjie, J.

In the year 1910, defendant owned and operated a farm in Sargent county, North Dakota, containing something over 1,000 acres. In March of that year, while upon a visit in Missouri, she met plaintiff, who was a married man with two small children. While there an arrangement was made between the two, whereunder plaintiff brought his family to defendant’s farm in North Dakota.

Plaintiff’s version is as follows:

> She wanted me to come to North Dakota to work on her farm as foreman, and she was to give me $30 a month and furnish transportation to Milnor, and I told her, — asked her if I would have to pay the car fare, and she said “Yes,” and then I told her I would not come; then she said she was willing to pay $30 a month and furnish me transportation to Milnor, and that at any time either party was .dissatisfied the money was due. . . .

> Q. You say that your arrangement with the defendant, Miss Blew, in this case, was that she should pay you $30 a month and pay the transportation for yourself and family to Milnor?

> A.. For myself.

> Q. Yourself alone?

> A. Yes.

> Q. Not for your family ?

> A. No.

> Q. Just for yourself ?

> A. Yes.

*587Tbe defendant’s version is that sbe was to pay bim $30 a month for an entire year, wbicb should include bis wife’s labor, and that sbe was to advance railroad fare and pay a $23 store bill wbicb plaintiff owed there, but that tbe railroad fare and tbe store bill were to be reimbursed her from bis wages. There is no’ substantial dispute that defendant advanced $47.75, wbicb paid for plaintiff and bis wife and a half-fare ticket for one of tbe children, and there is likewise little dispute that •defendant’s brother signed a note with plaintiff for tbe store bill aforesaid, and that defendant later paid tbe note. TJpon reaching North Dakota, plaintiff continued in tbe employ of tbe defendant until tbe 9th of August, when a dispute arose between himself and tbe defendant, regarding wbicb plaintiff testifies:

> Q. Go right on and tell what sbe said and what you said.

> A. Sbe wanted me to go down to tbe machine and haul bundles, and I refused to go off tbe place. • I didn’t think it was my place, and sbe said I could haul bundles or quit, so I quit, — went to settle up at tbe bouse, — sbe bad a little bouse out west of tbe big bouse, and sbe told me to get my book and sbe would settle. ... I got a settlement out of her. Sbe told me what her account was for, and I saw it was all right, and sbe figured up tbe store account and stuff sbe had paid cash for, and sbe figured up tbe stuff and it came to $3.66, and that was taken up and $20 in cash.

> Q. What amount, if any, was found due you ?

> A. $107.29.

> Q. What did sbe say to this *%*

> A. Why, sbe told me sbe would pay it and started to write a check, and her brother came out of tbe granary and told her not to pay; that they bad no money in tbe bank.

> Q. What date was that?

> A. Tbe 9th of August.

Miss Blew’s version is as follows: “He said my brother bad put bim on a rack to go out and work, and be said be was one of tbe regular men, and be did not think it was fair to put one of tbe month men on a rack to go out and work when we bad higher-priced men that were getting tbe going harvest wages; that be was just getting tbe going wages, and I said I did not think it would make any difference to my brother if be would take a grain tank, — we bad just begun threshing, tbe ma-*588cbines bad pulled on the place before dinner, and they were just- going out threshing, — one tank had 'gone out and another one was to go out,— and I said to him, ‘Is your team harnessed up *V*and he said ‘Yes,’ and I wanted him to hitch onto a grain tank; ‘it would be all right with my brothei’/ I says, ‘if it is not I will make it all right, — you go out on á grain tank, it won’t make a bit of difference.’ And then he said ‘No.’ He would not do it unless I would give him $2.50 a day. That is what he asked me and I says ‘I can’t do it.’ I says ‘I can’t,’ and I talked to him about five minutes trying to induce him to take out a grain tank, and he would not do it. . . . Q. At that time, did you tell Tharp that he might quit? A. No.”

It is admitted that defendant paid plaintiff the sum of $20 in cash and advances in groceries to the amount of $3.15 after his arrival in North Dakota. That plaintiff knew of the store bill in Missouri being paid appears from a letter introduced in evidence and written to him by De Bold Brothers, which reads as follows:

> Mt. Bose, Mo., September 5, 1910.

> Mr. Jess Tharp,

> Milnor, North Dakota.

> Dear sir:—

> Yours of the 2d at hand, in regard to the note. Before you left here, T gave you a bill of your account, and you gave me your note for the amount, which was $22.52, March 29, 1910, with Adden Blew security; interest on note up to August 25 is 75 cents, making a total of $23.27. I gave this note to Bertie Blew over here, and she sent it to her sister Gertie and Bertie paid us here for that amount. If Gertie has the note in her possession, — or whoever has — you owe them that amount to August 25.

> Take up 'this note and you are even. That is all we have against you at this store.

> You must understand that whoever holds this note, you owe them that amount. Hoping this will be satisfactory,

> Yours truly,

> (Signed) De Bold Brothers.

P. S. Am sending Gertie a duplicate of this letter so you can agree on terms.

*589Plaintiff upon tbe stand admitted tbat be owed tbis bill and tbat be bad given tbe note therefor, but said be did not ask Blew to sign with bim.

Plaintiff brought suit in justice court upon bis version of tbe contract, and tbe case was appealed first to tbe district court and then to tbe supreme court, being found at 23 N. D. 3, 135 N. W. 659. TJpon its return to tbe district court, tbe present trial was bad, wbicb resulted in a judgment for tbe plaintiff in tbe sum of $107.29, tbis verdict being undoubtedly reached by allowing plaintiff $30 per month for tbe time be was employed, deducting therefrom only tbe $20 cash and $3.75 groceries paid to bim in North Dakota, and disallowing tbe railway fare and store bill from Missouri. Defendant appeals setting up numerous assignments of error, among them objections to the charge of tbe court to tbe jury, of wbicb be says: “Our chief objection to tbe instructions is tbat they do not define tbe issues in tbat (1) they do not limit a recovery under the terms of tbe contract set up in tbe complaint, as tbat contract has been construed by the supreme court; (2) under tbe wording and terms of tbat contract, they do not require or limit tbe jury in finding tbe value of the services alleged from tbe evidence in tbe case; (3) they do not submit tbe defendant’s claims and plea of payment and offset, nor her counterclaims.” They also object to tbat portion of tbe charge wherein tbe court instructed as follows: “If tbe defendant, Miss Blew, paid tbe note, Exhibit B, without tbe knowledge or consent of tbe plaintiff, then tbe payment so made by tbe defendant would be what is known in law as a voluntary payment, and tbe defendant cannot be credited with tbe amount of tbe payment.”

(1) Without setting up the charge to tbe jury in full, we will say tbat after careful examination it appears to us to be wholly inadequate, confusing, and misleading, and tbat it not only was liable to, but did, actually mislead tbe jury to tbe prejudice of tbe defendant. A careful reading of tbe evidence has convinced us tbat tbe verdict is contrary to tbe evidence, and tbat under proper instructions a jury could not have found for the plaintiff in any sum exceeding $35.10. In view of tbe fact tbat tbis is tbe second time tbis case has been to tbe supreme court, and tbe interests of tbe parties, as well as of tbe state, require tbat tbe matter be brought to a conclusion, we have decided to order: “That tbe judgment of tbe trial court be reversed and a new trial ordered, un*590less witbin a period of thirty days after tbe receipt of tbe remittitur in tbe lower court, tbe plaintiff shall, in writing, consent to a reduction of tbe amount named in tbe verdict to said sum of $35.10. Appellant will recover her costs in this appeal.