(partly concurring and partly dissenting). I concur in the principles stated in the syllabus. At the conclusion of plaintiff’s case the defendant moved for a dismissal upon the' ground that the evidence showed that the lien claimed covered not only plaintiff’s manual labor, but also that of teams and farm machinery. The co'urt inquired of the plaintiff what his services would have been worth if he had not furnished any horses or machinery; also, what were the going wages for a man of his capacity during last' season. The plaintiff answered by stating that he did not know. He further informed ‘the court that he was to receive more because he furnished the horses and machinery. Accordingly, as I understand the record, the court thereupon granted plaintiff’s motion for the reason that plaintiff failed to prove the compensation due him for the performance of his labor alone.
It would have been error, as the majority opinion demonstrates, for the court to have denied the motion. Its action operated as a nonsuit. Woodward v. N. P. Ry., 16 N. D. 38, 42, 111 N. W. 627; 18 C. J. 1146. Upon the record there was no final determination of the merits, and plaintiff is not precluded from maintaining further proceedings for his proper demand. Section 7597, C. L. 1913; Hart v. First State Bank, 37 N. D. 9, 13, 163 N. W. 530. See Horton v. Emerson, 30 N. D. 258, 272, 152 N. W. 529; Lee v. Elevator Co., 34 N. D. 1, 6, 157 N. W. 688; 6 Enc. Pl. & Pr. 986; 18 C. J. 1201
The judgment should be affirmed, with costs.