ON PETITION FOR REHEARING.
The petition for rehearing is denied, but in denying the same we desire to say that we do not wish to be understood, by the foregoing opinion, as holding that this court will not for good cause shown, and in furtherance of justice, and upon such terms as may be just, consider errors, although embraced in a statement of the case prepared in utter disregard1 of the Code and rules of this court. We wish also to say that since the filing of such petition for rehearing,. and in order to obviate the possibility of a miscarriage of justice in the case, we have carefully considered the other assignments of error, and fail to see how appellant .is prejudiced by any ruling of the referee. We will briefly notice such rulings.
The fifth assignment relates to the ruling of such refleree in overruling defendant’s objection to the following question) asked the witness Hugh Smith: “As such constable you served upon the agent of the Soo Railway Company at Kensal, N. D., a subpoena in the case of Smith v. Kunert, requiring the agent of the aforesaid Soo Railway Company to appear and testify in said cause before the referee appointed by the judge of said court on the 15th day of May, 1905, at the hour of 2 o’clock p. m.„ to testify in said cause on part of the plaintiff?” The lobjection was as follows : “Objected to on the ground that it is incompetent, improper, and immaterial, and not the best evidence; the return of the officer on the subpoena being the best evidence.” 'Such ruling was clearly proper. The question was merely preliminary, and, furthermore, was not objectionable up'on, any ground.
Assignment No. 6 challenges the ruling refusing to strike out the answer of the witness Olander to -the question: “You1 may refresh your memory from such memoranda, and tell the court how many cars were shipped, giving the numbers of the cars, and the *127date of shipment, and the weight of each.” This question was not objected to, and was clearly competent. After the witness had fully answered the question, he was saked: “Are you sure that this was all the gram shipped through the Soo Railway Company by the defendant in 1904?” to which the witness answered in the affirmative. Such witness thereafter volunteered the information that the cars overrun at least 3,000 pounds to the car; but later on the witness without objection stated the source of his information to be the weights taken by the company and upon which the charge for freight was made. There was no error in such ruling.
The next assignment relates to the ruling of the referee in permitting the witness Olander to answer, over the objection of defendant, the question: “Are you willing that C. W. McDonald should refresh his memory from the books in your office concerning these shipments for the purpose of testifying thereto; he having made entries therein?” The objection to this question was clearly frivolous, and we fail to see how such ruling could possibly have constituted prejudicial error. The same is true regarding the next assignment, being No. 8.
Assignment No. 9 is predicated upon the refusal to strike out the testimony of the witness Ayers on motion of the defendant. This witness was called1 for the purpose of proving that he met plaintiff, Smith, during the latter part of the fall of 1903 or the fore part of 1904, at Kensal, on his return from Hankinson, and that he was intoxicated. We are unable to perceive how such ruling was error.
The tenth assignment is clearly frivolous, and is predicated upon the rujling in permitting the plaintiff, Smith, to state that he sold Mr. Kunert a farm during 1903 or the 'fore part of 1904. The objection was that the testimony was incompetent and immaterial, and not tending to prove or disprove any of the facts at issue. It needs no argument to prove the correctness of such ruling, and, if it was immaterial, as claimed, it certainly could not have been prejudicial.
The eleventh assignment is predicated on the ruling in permitting the plaintiff to answer the following question: “And what share of the crop were you to receive, and what were you to do to get that share?” The objection to this question was well taken, and should have been sustained, as it called for proof of the contents of the written lease; and the same is true of assignment No. 12. *128But such rulings, although erroneous, are not shown to have been prejudicial, atnd the burden is, of course, upon the appellant to show prejudice. It does not appear that plaintiff’s answers to these questions were not strictly in accordance with the written lease.
(115 N. W. 76.)The next assignment relates to the ruling of the referee in overruling defendant’s objection to, and denying his motion to strike out, the answer of the plaintiff to the question: “And there was due
on the contract for sale $800 ?’’ What we said regarding the last two assignments applies equally to this. No prejudicial error is shown in such ruling.
Assignment No. 14 challenges the correctness of the ruling in permitting plaintiff to answer the following question: “What, if anything, did Mr. Kunert agree to pay you for your -interest in this quarter section of land?” The objection was that the same was not the best evidence; but by the following question and answer it appears that the assignment of the contract was not in writing. Hence no error was committed in this ruling.
The next assignment is clearly frivolous; and it is unnecessary for us to notice the remainder of the assignments, as they are also clearly frivolous.