
    CLARK, Respondent, v. MOSIER, Appellant.
    (150 N. W. 475.)
    (File No. 3565.
    Opinion filed January 16, 1915.)
    1. Appeals — Error—Instructions—Law of Case — Verdict, Conclusiveness of — Sufficiency of Evidence.
    Instructions not excepted to become the law of the case, and a verdict thereunder is conclusive, unless the evidence is insufficient to support it.
    2. Appeals — Review—Evidence—Imperfect Record of.
    Where the record on appeal fails to contain all the evidence, the question of sufficiency or insufficiency of evidence cannot be considered.
    
      3. Evidence — Conclusions—Self-Serving Declaration — Interrogatory.
    Where ■ plaintiff, after defendant had visited him and talked with, him concerning adjustment of the matter, released to defendant cattle distrained by plaintiff lor damages for trespass, held, that testimony by plaintiff that he would not have released the cattle if defendant had not agreed to pay the damages, was not objectionable, either as a conclusion, or as a self-serving declaration; and the question, whether or not he would have released them if defendant had not so agreed, called for a statement of fact.
    Appeal from Circuit -Court, Lyman County. H-on. Wiuuiam Wiuuiamson, Ju-dge.
    Action -by Vern R. Clark -against Walter Mo-sier, -to recover ' for damages for trespass by -cattle. From a judgment for plaintiff, an-d from an order -denying a new trial, defendant -appeals.
    Affirmed.
    
      R. P. Stezvart, R. W. Risks, and George Philip, for Appellant.
    J. W. Jackson, and Bartine & Bartine, for Respondent.
    (3) Under point -three of -the opinion, Respondent cited: Wood et al. v. Dodge, 23 S. D. 97.
   POLLEY, J.

Action for the recovery of -damages caused by cattle belonging to certain Indians on the Rosebud Indian Reservation that were allowed to- trespass- on plaintiff’s land. Plaintiff recovered judgment; .and defendant appeals.

Plaintiff is a farmer, occupying land along the north side of White river. The defendant is what is known as “Boss Farmer” in the district of the Rosebud Reservation, lying along the opposite side of White river. During the fall of 19x1, cattle, belonging to certain Indians in -defendant’s district, trespassed upon and damaged- plaintiff’s -crops, and were distrained and held by him for the damage resulting from such -trespass. Defendant undertook to adjust the matter of -said- damage -with plaintiff, and, a-s a result of their negotiations, plaintiff and defendant agreed upon the amount -of damages- to which plaintiff is entitled; and it is contended- by plaintiff that defendant himself agreed to pay the amount of the damage -so agreed upon, an-d that, upon the strength of such agreement, he surrendered' the cattle to their owners -and released his lien thereon.

Defendant -does not deny that he made certain representations to plaintiff; and it is not disputed that, as a result of such representations, -plaintiff released the -cattle and waived -his- lien thereon. It is also apparent from- the record that defendant had caused a .portion of the damage agreed upon to be paid prior to the commencement of the action; but defendant denies that he ■ever promised to become personally responsible for such damage, contending that he only promised to see that the damages should be paid by the owners of the trespassing cattle, and that, in any event, whatever promise he may have made was .but an oral agreement to pay the debt of another, and therefore void under the statute of frauds. The real issue to be determined then is: Was defendant’s agreement a mere promise to answer for the debt of another, and therefore void because it was not reduced to writing, o.r was it an independent agreement on the part of the defendant to pay plaintiff a stipulated sum of money for the release of the cattle without any reference to. the liability of the owners of the cattle that caused the damage. Upon this question, the trial court charged the jury as follows:

“In order to bind the defendant on his alleged promise to- pay, you must find' that the defendant promised that he personally would be liable for the damages done by the trespassing of the TD’ cattle testified to., and you must further find that as a result of such promise tíre plaintiff did release such cattle and thereby lost his lien for damages which he might have had -had he retained possession of the cattle. In other words, it amounts to simply this, gentlemen, that before the plaintiff can recover in this case you must first find that the defendant made the promise to pay these damages personally and thereby made him'self responsible for -these damages, and that as1 a result of this promise, if you believe from the evidence -that he made such a -promise, the plaintiff turned these cattle lose and thereby lost his lien. In that case, gentlemen of the jury, he would be liable. On the other hand, the defendant says he made no such promise. He contends that all he agreed to do was to do his best to collect this money from, the Indians and turn it over to the plaintiff. If this was the agreement between the parties, then of course the defendant would not .be liable personally, and you should find in his favor.”

To this charge no exception was taken, and, the jury having found in favor of plaintiff, the verdict is conclusive unless •the evidence is insufficient to support such verdict, or is based .upon evidence that is immaterial or incompetent. The record on appeal -does not purport to -contain a full statement of the evidence, and therefore the sufficiency or insufficiency of the -evidence to support the verdict cannot be considered.

Certain assignments -are based upon the trial court’s ruling on the admis-sion of testimony and upon defendant’s motion for a directed verdict at the close of plaintiff’s testimony, and again at the close of all the testimony.

While on the witness stand, plaintiff was asked whether or not he would have released the -cattle if defendant -had not agreed to pay the- damage. This was objected -to on the ground that it call-s- for a conclusion and a self-serving declaration of the witness. The objection was overruled, an-d rightly so. The question is not objectionable on either of these grounds. It calls for neither a -conclusion nor a self-serving declaration, but for a statement of fact. That plaintiff released the cattle and thereby surrendered bis lien thereon was an admitted fact; and the purpose of the question was- to sho-w the inducement that-prompted plaintiff to for-ego such -security and to sho-w that -he acted s-olely -on defendant’s promise to- pay.

The other assignments have been examined, but do not re-require special discussion.

We are satisfied that no error is disclosed, and the order appealed from is affirmed.  