1 N.D. 21 | N.D. | 1890
Plaintiff sued as administratrix and alleged — First, her representative capacity; second, “that on the 9th day of December, 1887, she loaned the defendant, for his accommodation, through his agent, Ferdinand Newhauser, and
After the jury had been sworn, and when the first witness was produced, the defendant objected “to the introduction of any evidence under the complaint in this action; for the reason that the facts therein stated do not constitute a cause of action.” The objection was overruled, and this ruling is assigned as error. The ruling cannot be reviewed: for the reason that proof was introduced tending to establish the facts not alleged, and no objection was made to such proof because of such insufficient allegation. Learned counsel probably had in mind the fact that there was no specific allegation that plaintiff loaned the money as administratrix. When proof of that fact was offered, he should have made his objection for that reason. His general objection does not reach the point, and the proof being received without objection cures the defect in pleading, if any. Thoreson v. Harvester Works, 29 Minn. 341,13 N. W. Rep. 156; Isaacson v. Railroad Co., 27 Minn. 463, 8 N. W. Rep. 600.
Thirteen errors are assigned upon the rulings of the court on defendant’s objections to testimony. These errors need not be reviewed in detail or the evidence reproduced. They are all comprehended in one of two classes: First, where plaintiff sought to prove specific acts or statements of the alleged agent, Newhauser, before the agency had been established. These went simply to the order of proof, and were clearly within the discretion of the court. Com. v. Dam, 107 Mass. 210; Hutchins v. Kimmell, 31 Mich. 126. Tbe second class were instances where plaintiff sought to prove that Newhauser had borrowed money of other parties for defendant with a view to showing authority in Newhauser to borrow money. It was the expectation of the learned judge of the district that these transactions would be brought to the subsequent knowledge of defendant; and, indeed, such was the effort of plaintiff’s counsel. Under such circumstances, the objections went to the sufficiency and not to the competency, of the proof, and were properly overruled.
When the evidence was closed, defendant again asked the court to instruct the jury to return a verdict for the defendant.
The evidence is all in the record. The members of this court-have separately and carefully examined it; and we áre agreed that, taking from the record defendant’s sworn denials, and admitting all of plaintiff’^ evidence to be true, yet there exists no legal evidence upon which an agency to borrow money, or an estoppel to deny such agency, can be based. It will serve no good purpose to set out the testimony. No express authority.is claimed. Plaintiff relies solely upon implied authority arising from the acts of the pretended agent, Newhauser. Admitting that Newhauser did borrow money from another party, ostensibly for the use of defendant — and that is far from certain on the record — and admitting that such loan was paid by check drawn by Newhauser in defendant’s name, still there is no legal evidence that defendant knew of such transactions, or of any facts or circumstances from which he could reasonably infer the same. Nor is there any evidence that defendant ever received any benefit whatever, directly or indirectly, from the loan in this case, or any other loan which Newhauser pretended to make for his benefit. Reversed, with costs, and a new trial ordered.