
    WILLIAM T. BLAKELEY v. J. NEILS LUMBER COMPANY.
    
    May 12, 1911.
    Nos. 17,048 — (117).
    Case followed.
    Judgment notwithstanding the verdict denied, but a new trial granted to plaintiff. . [Reporter.]
    Action in the district court for Cass county to recover $1,278.37 balance alleged to be due upon a contract for driving logs. The complaint alleged that pursuant to the contract plaintiff took possession of all logs in Little (lull lake during the logging season of 1906 and 1907 and drove and delivered the logs to defendant. The answer denied the performance of the contract and alleged that in July, 1907, the logs, having been driven to the junction of the Turtle river with the North Turtle river, absolutely blocked those rivers, and other drives were prevented from passing without first removing the obstruction or causing an intermingling of drives; that plaintiff voluntarily abandoned the drive; that while the obstruction so existed Blake & Hawkins, engaged in bringing a large drive down the North Turtle river, reached the junction with several million feet of logs; that these logs became intermingled with those of defendant; that Blake & Hawkins were obliged to drive all of the logs so intermingled to their destination; that on September 16, 1907, Blake & Hawkins filed a lien under B. L. 1905, §§ 3525, 3535, upon the logs amounting to $1,350 and that judgment was thereafter rendered for that amount. The reply denied that plaintiff blocked the rivers or abandoned the drive. , The case was tried before Stanton, J., and a jury which returned a verdict in favor of plaintiff for $746.30. From an order denying plaintiff’s motion for a directed verdict in his favor for $1,272.36 notwithstanding the verdict or for a new trial, he appealed. From an order denying defendant’s motion for judgment notwithstanding the verdict or for a new trial, it appealed. Defendant’s appeal dismissed.
    New trial granted upon plaintiff’s appeal.
    
      Chester McKusick, for appellant.
    
      Fred W. Smith and R. J. Powell, for respondent.
    
      
      Reported in 131 N. W. 1133.
    
   Per Curiam.

Action to recover $1,272.36 and interest, being a balance claimed by the plaintiff to be due him on a contract for driving logs. At the close of the evidence the plaintiff moved for a directed verdict in his favor in the amount claimed. The defendant moved for a directed verdict in its favor. Both motions were denied, and the jury returned a verdict for the plaintiff for $746.30. Bach party made a motion for judgment or a new trial. The motion of each was denied, and each appealed from the order. The plaintiff in this court made a motion to dismiss the defendant’s appeal for its failure to comply with the rule as to service of its brief. The motion must be granted.

The plaintiff’s appeal presents the question whether he is entitled to judgment absolute for $1,272.36 and interest, or a new trial. Upon a consideration of the record, we are of the opinion that, within the rule of Cruikshank v. St. Paul F. & M. Ins. Co., 75 Minn. 266, 77 N. W. 958, the plaintiff is not entitled to judgment absolute, but that upon the record and concessions of defendant’s counsel on the argument he is entitled to a new trial.

Ordered, that the defendant’s appeal be and it is hereby dismissed, and further, that a new trial be and it is granted upon plaintiff’s appeal.  