Page:North Dakota Reports (vol. 48).pdf/562

fall of 1917, the cropper, the defendant herein, brought an action against the plaintiff herein, to recover the balance due for wheat, oats, and flax obtained by the owner from the cropper and for an amount paid for threshing, also for wheat, rye, board, horse feed, pasturing and wintering stock, painting, hauling lumber, breaking, and butter, all furnished by the cropper to the owner. In that action the plaintiff owner interposed a general denial. Pursuant to the trial of that action judgment was entered in December, 1919, for about $1,150, in favor of the cropper. This judgment apparently was paid to the cropper’s attorney. Thereupon the plaintiff owner, in April, 1920, the cropper having removed to the state of Illinois, instituted garnishment proceedings against the cropper’s attorney, as garnishee, and instituted this action. The attorney disclosed some $700 due the cropper. He appeared and interposed an answer setting up a general denial. At the trial, the owner offered evidence to the effect that the cropper, during the years 1915 to 1917, used certain hay, oats, and wheat of a certain value that belonged to the owner; that during such years he performed work and furnished horse teams, in connection with the cropper’s farming operations, of a certain value; that there was no agreement to pay, but an understanding (oral) that anything he furnished the cropper, he would furnish back, such as in other articles ; that any work he performed, the cropper would return in similar work, or its equivalent. The cropper offered evidence to the following effect: He minimized or denied the items of goods or labor furnished. That concerning the labor of the plaintiff or his teams he fully compensated therefor by work of the cropper performed for the owner in return, and pursuant to which settlement therefor was made. The plaintiff, in rebuttal, testified that since 1914 the work that the cropper had per- formed for him was the hauling of one load of lumber in IgI e and that he had made a charge for such item in the former action. Upon objection of the cropper to this testimony the trial court suggested the introduction of the files and records in the former action, and that the court be requested to take judicial notice thereof. Thereupon the plaintiff so offered and so requested. The cropper objected upon the ground that in the former action the cropper did not sue nor recover upon any items that were offset by what the owner had coming. That the items in such former action were additional. The trial court charged the jury that the cropper could not offset in this action any of the items upon