(concurring specially). This is an action for conversion. The plaintiff claims that she was the owner of four head of cattle which the defendants wrongfully converted to their own use to her damage in the sum of $300. The plaintiff testified positively that she was such owner. She also testified to the value of the cattle at the time of the conversion. Such testimony was competent. Seckerson v. Sinclair, 24 N. D. 623, 629, 140 N. W. 239.
It is asserted by the defendants that she is estopped to claim such ownership. Also that the court should have given appropriate instruction on the subject of estoppel.- An examination of the evidence discloses that there is no basis for the contention that plaintiff is estopped .as a matter of law. No instructions were requested on the subject of estoppel. The evidence, which it is asserted had a tendency to establish estoppel, w!as received and was doubtless considered by the jury on the question of ownership — that is, on the question whether the cattle belonged to the plaintiff. I have considerable doubt whether under the evidence, there was any basis for an instruction on the subject of estoppel; and I am entirely satisfied that there was no error in failing to instruct on that subject, in absence of a request for instruction.
It is next asserted that the court erred, in not instructing the jury that in determining the value they must consider the market Value alone. No such instruction was requested. The plaintiff had testified to the value of the property, which, being the owner, she was of course competent to do. Other witnesses were called during the course of the trial who testified as experts to the market value. .Upon this state of the record it is quite doubtful if the defendants would have been entitled to
*936an instruction as contended for even if they had requested that it be given. See McGilvray v. Railway Co., 35 N. D. 275, 287, 159 N. W. 854. But, inasmuch as they made no request for instruction, they are manifestly in no position to predicate error upon the court’s failure to instruct on the question of value.
Error is also assigned upon alleged prejudicial remarks of counsel in the argument to-the jury. The contention is that plaintiff’s counsel in his opening statement to the jury referred to the defendants and their counsel as representatives of the beef trust. The record does not purport to show the exact language used. There is merely a statement by defendants’ counsel that plaintiff’s counsel in his argument referred to the defendants and their counsel as representatives of the beef trust. There was no motion on the part of the plaintiff, and no ruling by the court. Upon this record there is no basis for an assignment of error. Erickson v. Wiper, 33 N. D. 193, 157 N. W. 592; Kimm v. Wolters, 28 S. D. 255, 133 N. W. 277.
The following language used in Erickson v. Wiper, supra, is directly applicable here:
“A party asserting error has the burden of proving it. And as was said by this court in Davis v. Jacobson, 13 N. D. 430, 101 N. W. 314, he has the burden of preparing and presenting a record showing such-error affirmatively. See, also, State v. Gerhart, 13 N. D. 663, 102 N. W. 880; State v. Scholfield, 13 N. D. 664, 102 N. W. 878. This rule applies with more than usual strictness where error is predicated on rulings upon matters resting largely within the trial court’s discretion.' An abuse of discretion will not be assumed, but must clearly be shown by the party asserting error. The party predicating error on improper argument must present a record showing: (1) The objectionable language used; (2) the objection made; (3) the court’s ruling on the objection. Bradshaw v. State, 17 Neb. 147, 22 N. W. 361, 363, 5 Am. Crim. Rep. 499. In this case the record does not show the language used. * * * This is clearly insufficient to permit a review. So far'as this court knows, the conclusions of defendant’s.counsel as to what plaintiff’s counsel said may have been entirely erroneous.” 33 N. D. 222, 223, 157 N. W. 592, 602.
Error is also assigned upon the overruling of the motion for a new trial. The motion was made solely on a discretionary ground, namely, newly discovered evidence. The newly discovered evidence had ref*937■erence to the question whether plaintiff was in fact married to Mr. Howlett, the man with whom she is living,- and whose wife she purports to be. It seems too clear for argument that this court would not be justified in disturbing the trial court’s ruling on this motion.
Hence I concur in an affirmance of the judgment and of the order .denying a new trial.
Bronson and Birdzell, JJ., concur.