196 N.W. 755 | N.D. | 1923
This is the second appeal of this ease. The opinion in the. former case is reported in 48 N D. 1046, 189 N. W. 251. The law of the case ivas laid down in that opinion. The facts on the present appeal are substantially identical with those on tlie former. Immediately prior to tbe second trial which was bad to a jury, the defendants asked for leave to amend their answer. Over objection leave was granted. However, on tbe trial tbe court sustained the plaintiff’s objection to all evidence sought to be offered under tbe amendment, so that tbe issues of fact on tbe second trial were identical with those as made and determined on tbe first trial. On tbe second trial the defendants had a verdict. From the judgment entered thereon the plaintiff appeals.
The appellant assigns some seventy-six errors. He predicates error on account of the admission or rejection of evidence offered; on account (tf alleged misconduct of the respondents’ counsel; and by reason of instructions given to tbe jury.
Tbe testimony offered by tbe respondents on the second trial was
Appellant, however, contends that the issues on the second trial were not the same as those on the first by reason of amendments allowed by the trial court. It is true that an amendment was allowed to the second paragraph of the answer. But when in the course of the trial respondents sought to introduce evidence in support of the matters pleaded in this amendment, objections interposed thereto were sxistained and the evidence rejected. Thus, in fact, the case was tried and submitted on the identical pleadings and issues as made on the first trial, and the parties were the same. It is true that on the second trial the appellant may have had a different theory of law, but we do not believe that on the record that fact alone justifies the contention that the issues were different.
Appellant further contends that the same rule applies to evidence of this character that applies to depositions as regards exceptions on the grounds of incompetency and irrelevancy, and that under § 1900,
Tbe respondents, by tbe testimony complained of, were endeavoring to establish by parol evidence, first, that certain real property had been sold, and second, that tbe purchaser, one Sharf, bad assumed and agreed to pay respondents’ note secured by a second mortgage on such property. Appellant states bis own position in that connection as follows : “Plaintiff was and is trying to recover bis $1,000 and interest, lie does not believe tbat Rev. Sharf assumed and agreed to pay bis note secured by his second mortgage. The only competent evidence of this pretended assumption by Rev. Sharf is tbe deed itself which, it is claimed, was delivered to him and which be accepted. In no event would parol evidence of tbe contents of this deed be admissible until it was shown clearly and persuasively that the instrument or a certified copy of it was not available to them as testimony. Nearly all of
Appellant’s second proposition is that the trial court erred in sustaining objections, to certain testimony offered by him through the witness Wimber. We have carefully examined the record in so far as it relates to the rulings of the trial court with reference to this testimony, and we are of the opinion that on the whole record there is no error. Appellant was permitted to develop the line of evidence he desired to, and while the rulings as pointed out by tlic assignments standing alone might have been objectionable, yet taking the whole record together we do not believe that there was error.
Appellant further contends that there, was prejudicial error by reason of the misconduct of respondents’ counsel in the examination of the jury panel, in pursuing an objectionable course of examination during the trial contrary to the rulings of the trial court, and in his argument to the, jury by reason of persisting in reading from the transcript of the evidence. It is sufficient to say that though there may havo been some ground for complaint on the part of appellant, that nevertheless in every case where objection was interposed, the, trial court, ruled thereon. No requests for instruction with reference thereto were submitted, and no requests to admonish the jury wore denied. Such
The fourth contention of the appellant is that the court erred in its instruct ions to the jury; that these instructions were not applicable to the facts as established; that there was not sufficient evidence in the record as made, considering the objections of the appellant, to establish either a sale of the real property in question to Sharf, or if such a sale were established, an agreement to assume and pay the note sued upon, and a failure on Shari’s part to make such payment. We believe that what we have said with reference to the first, contention urged by the appellant and heretofore considered disposes of these assignments. We think that there is sufficient evidence properly in the record to warrant a submission of these questions of fact to the jury, and the jury’s finding thereon is conclusive. The instructions complained of were strictly in accord with the law of this case as laid down on the fenner appeal. That being so, there is no merit to the contention.
The judgment must be affirmed.-