and called Mr. Ulmer and myself there. Then I told them that I couldn't hardly care to take Mr. Ulmer's stone; and I think it was Mr. Turner said: 'Well, we will have to throw all the bids out and readvertise,' or some such thing. So there was some other member of the committee spoke up and said, 'You and Mr. Ulmer are here, and why not go outside and talk the thing over, and see if you can come to some conclusion?' Or before we went out I said I couldn't take the contract. They wanted me to take the contract, and let Mr. Ulmer take the curbing. I told them I didn't think I could do that. Finally, then, some one suggested for him and I to go outside and talk it over; so we stepped outside of the committee room, and I asked him what he would allow me a foot to take that from the cars and set it in place. He told me he would give me eight cents a foot. I told him that wouldn't leave anything in it for me, it would cost more than that to put it in; but I said I would do it for ten cents or twelve cents. 'No,' he said, 'that is my price. It is all right, and you have to take it for that.' So I finally agreed to take it from the cars and set it in the street for eight cents a foot, and I was to pay him as I got paid from the city for what I put in the street, and give him the city engineer's estimate as I got that. That is practically all the contract Mr. Ulmer and I had, that I remember of. That was all that was talked over. There was no other contract. That was all the contract there was. Then we went back to the committee and told them what we done, and so on; and then, in conclusion, the committee awarded me the contract. Mr. Ulmer was to take the warrants, the same as I got, and I should pay the same as I got; but afterwards there was some time I disposed of warrants, and I could do that, and it was an accommodation to him, and I gave him some money, instead of warrants, as I was getting rid of the warrants."

It will thus be seen that their testimony is in square conflict. The plaintiff testifies, in effect, to a contract for the sale of stone to defendant. The defendant, on the other hand, explicitly denies any conversation from which a contract of sale might be deduced, and narrates in detail a conversation which, if it occurred, establishes the transaction as one of employment and agency on his part. court is unanimous in the conclusion that, if there was no other evidence in the case than that above quoted, the plaintiff would necessarily fail, for the reason that he has failed to sustain the burden of proof necessary to establish his cause of action. The case is one in which resort must be had to surrounding facts and circumstances for the purpose of determining where the truth lies. From a consideration of such facts and circumstances, the court has reached the conclusion that the defendant's contract was one merely of employment, and that the finding of the trial judge, who had the superior advantage of hearing the testimony as it fell from the lips. of the witnesses, was entirely correct, and must be sustained. Conclusive evidence to that effect is afforded by the conduct of the parties themselves. As we have seen, they reported their oral ar

rangement to the city authorities. As soon as they reported such agreement, and it was settled that plaintiff's curbing would be used, the plaintiff left for his home, in St. Paul. On the following day, the city authorities, to whom the agreement had been reported, caused the city attorney to prepare a written contract for the paving, curbing, and grading in question, and the same was signed by the authorities of the city and by McDonnell. The contract was prepared with great care, and includes recitals of the advertisement for bids, and a statement of the bids submitted, with prices for the various kinds of paving and different kinds of curbing. In said contract, McDonnell agrees to furnish all labor and materials to complete the contract; and it is provided that all work shall be done. under the direction of the city engineer, and that all material furnished shall be subject to the approval of the city engineer. The contract further provides "that all curbing shall be done with the W. H. Ulmer Dunville sandstone, unless otherwise directed by the city council," and the right is reserved to change this curbing and use other curbing upon 10 days' notice. The amounts to be paid for the different kinds of paving and kinds of curbing are stated separately and in detail, and it is agreed that payments due upon the contract shall be made in paving warrants issued from time to time upon semi-monthly estimates of the work done, as made by the city engineer. The defendant's relation to the plaintiff and to the city in reference to the curbing which plaintiff had induced the city to accept for paving purposes, is clearly defined in the following provision, which is inserted in the contract in question: "It is further stipulated that the party of the second part [McDonnell] shall not be held responsible in any way to the city of Grand Forks for the furnishing and delivery from the quarry to the station in the city of Grand Forks of the W. H. Ulmer Dunville sandstone curbing mentioned in the proposal and in this contract, or for the durability of said sandstone; it being the intent hereof that the party of the second part shall be responsible to the city of Grand Forks only for the delivery of said stone from the cars in the city of Grand Forks to the place of work, or using the same, and for the proper setting of the stone." It is patent, in view of the provisions of the contract just quoted, that McDonnell did not sell or contract to sell the stone in question to the city; and it is absurd to believe that he would enter into this contract, wherein, as we have seen, the city reserved the right to use other than the Dunville sandstone, if he had in fact, as plaintiff contends, not 24 hours previously, bought outright 42,000 feet of plaintiff's stone, which might or might not be received, at the city's option, involving a personal obligation of $18,000. It is both improbable and absurd. It is true, Ulmer did not sign this contract, and was not present when it was executed, but it was made between the city authorities and McDonnell almost immediately after the plaintiff and McDonnell had reported to the city council what their agreement was; and it is entirely reasonable to

infer that the written stipulation in reference to the defendant's relation to the stone truly represents the agreement which the parties made and reported to the city council. Further, there is not a single suggestion or circumstance disclosed in the entire record even tending to show that McDonnell at any time has in any way treated his contract with the plaintiff as being in any respect different from that testified to by him. The plaintiff's conduct also negatives the idea of a sale to McDonnell. No such claim was made by him until this action was commenced, in December, 1899. Not only was no claim made by him that he had sold the stone to McDonnell,. but his conduct has been inconsistent with a sale. This is shown by numerous acts, some of which we will mention: In December, 1898, some of the stone which had been delivered and was upon the streets of Grand Forks could not be used because of the extreme cold weather. It is undisputed that the plaintiff paid McDonnell $12.50 for taking care of it. The reason given by plaintiff is that he did this "because he did not want it piled up outside." This exercise of the right of ownership after it was unloaded does not harmonize with his present claim that he sold it to McDonnell f. o. b. cars Grand Forks. Again, it appears that at all times prior to the commencement of this action, the plaintiff looked to the city for his pay. On July 2, 1899, he wrote to McDonnell as follows: "Get as big an estimate as you can on the work to-morrow night, and send it to me as soon as possible, so I can pay the men and freight. We have got up there now 27,000 feet of curb altogether,-what I shipped this fall and last spring." And again, on September 1, 1899, he wrote to McDonnell: "I wish, as soon as you get the estimate, that you would send me a check before the 10th of the month, as it is my pay day, and I am figuring on getting the money from you for the same." As the work progressed, the plaintiff was paid by paving warrants, which were transmitted by McDonnell, issued upon the estimates made by the city engineer. In some instances McDonnell disposed of the warrants, and sent cash instead, for Ulmer's accommodation. It appears that in 1899 objection was made, by property owners upon whom the burden of payment ultimately rested, to the plaintiff's stone, and upon petition from such owners the city council decided to use other stone for curbing, under the right reserved in the contract to make such change. McDonnell notified the plaintiff not to ship any more stone. Upon receiving this notice, Ulmer made no demand upon McDonnell for a settlement or for payment. Neither did he claim that McDonnell had agreed to purchase either the stone then delivered, or the entire 42,000 feet, as he now claims. The evidence shows that the plaintiff, upon the rejection of his curbing, came to Grand Forks and employed as counsel the firm of Cochrane & Corliss; and, after stating the facts to them, said firm, under date of October 31, 1899, wrote to the defendant the following letter: "P. McDonnell, Esq., City-Dear Sir: Mr. Ulmer was here yesterday, but failed to find

you; and, as he was unable to remain, he has left his matters in our hands to look after. He says there is some money in your hands which he wishes paid at once, as he is in need of money himself. Will you kindly call at the office at your earliest convenience, and see us about this matter, so that we can understand just what the situation is." This demand plainly proceeds upon the ground that McDonnell then had in his hands money which he had received from the city, which Ulmer claimed belonged to him, and a position which is utterly inconsistent with the present claim that the stone was sold to McDonnell, and that the latter owed Ulmer for it. The evidence shows that thereafter, and on November 19, 1899, the sum of $392.50 was paid to Cochrane & Corliss by McDonnell for the plaintiff, pursuant to the above demand. Again, John Dinnie, the mayor of Grand Forks, testified that the plaintiff informed him that "he would hold the city for the stone, and that he would sue the city for the difference in the stone, the stone that he did not use," and that he did not remember that plaintiff mentioned any demand or claim against McDonnell. The plaintiff does not deny having this conversation with Dinnie. He says: "I might have had a conversation with Mr. Dinnie with respect to this contract. I told him I should try to hold McDonnell, and, if I could not, I should hold Grand Forks; that I should hold Mr. McDonnell and the city of Grand Forks both, if I could. I qualified myself in that way. At that time I guess I had a conversation with Mr. Turner in respect to this matter, and told him I intended to sue McDonnell and the city of Grand Forks. That was before I consulted Judge Corliss. After I consulted with him, I concluded to sue McDonnell. He said my contract was with McDonnell, and I sued." It thus appears that the present theory of the sale of the stone to McDonnell was born of the exigency in which the plaintiff found himself upon the rejection of his curbing by the city, and this is less than one month before this action was commenced. It goes without saying that if plaintiff had sold the stone to McDonnell, as he now claims (the transaction involving something like $18,000), he would have known that fact. In addition to the convincing effect of evidence which we have recited, due weight must also be given to the fact that the plaintiff's theory of a sale to McDonnell is utterly improbable. It is conceded that there was no profit whatever for McDonnell in connection with the curbing, and a probably loss, and this fact was known to all parties when the arrangement between the plaintiff and defendant was made, whereas it appears, and the plaintiff alleges, that his profit upon the stone, after allowing 8 cents. per foot for setting it in place, was 26 cents per foot, or an alleged profit of $10,920 on the entire 42,000 feet. It is absurd to conclude that a man of ordinary prudence, under such circumstances, would buy the stone outright, and this at a time when he had no contract with the city, and then immediately enter into a contract with the city, in which the city reserved the right to use other stone, as was

done in this case. It is usual for the person having the profits of a sale to bear the burden of such losses as are incidental to a rejection of the property sold. Plaintiff has entirely failed to show a sale to McDonnell, and consequently cannot look to him to recoup his loss. What the plaintiff's rights are as to the city, we need not discuss or determine. The city is not a party to this action. It is sufficient for the purposes of this case to say that the defendant did not agree to buy the tone, and that his contract with the plaintiff was merely to transfer the stone and set it in place, as alleged in the answer and found by the trial court.

Counsel for appellant does not specify in his brief that any items of the counterclaim as found and allowed by the trial court for removing and piling up the rejected stone were erroneously decided. We assume, therefore, in the absence of such specifications, which are required by rule 12 (74 N. W. Rep. viii) of the revised rules of this court, that the items were correctly found. The entire argument of appellant's counsel goes to the character of the contract.

Having reached the conclusion that the defendant did not buy the stone, but that the contract was merely one of employment, it follows that the judgment of the trial court must be affirmed, and it is so ordered. All concur.

(92 N. W. Rep. 482.)

O. P. NOKKEN vs. AVERY MANUEACTURING COMPANY.

Negligence-Not Error to Submit Question to Jury.

It is held, in an action to recover damages caused by the alleged negligent blowing of a whistle on defendant's threshing engine, that the jury did not act capriciously or arbitrarily in rejecting the testimony of the defendant's engineer, who testified that he did not blow the whistle, in view of other evidence in the case tending to contradict him, and that the court did not err in submitting the question of the defendant's negligence to the jury.

Pleading-Damages Allegation of a General Sum Sufficient.

In an action to recover damages for injuries caused by a single act of negligence, it is not necessary to allege in the complaint the separate items of damage resulting therefrom. It is sufficient to allege a general sum, without specifying the particular items.

Evidence--Sufficiency, Test of.

The sufficiency of the evidence to sustain an item of damage sought to be recovered is not properly raised by a motion to strike out the evidence as to such item, and it is not error to refuse to strike out the evidence when it is competent. The test of the sufficiency of the evidence to sustain an item of damage should be presented to the court by a request that the jury be directed to disregard the particular item of damage. Kolka v. Jones, 6. N. D. 461, 71 N. W. Rep. 558, 66 Am. St. Rep. 615, followed.