
    FIENUP, Appellant, v. GORDON, Respondent.
    (168 N. W. 32.)
    (File No. 4336.
    Opinion filed June 11, 1918.
    Rehearing denied July 24, 1918.)
    1. Appeals — Review—Directed Verdict Denied, Under Correct Instructions, Effect, re Evidence to Jury.
    Where instructions were correct, verdict must be sustained, where court correctly overruled appellant’s motion for directed verdict.
    a. Trials — Insufficiency of Evidence — Motion for Verdict, Specification of Particulars In — Knowledge of Existence of ■ Fact, Immateriality. ■
    Upon motion for directed verdict, specification of particulars that defendant did not know of existence of facts upon which his counterclaim rested, was insufficient, as right of recovery did not depend upon his knowledge, hut upon actual existence of such facts.
    3. Appeals — Error—Evidence of Prejudicial Failure Under Contract — Counterclaim, Refusal to Take From Jury. — Evidence, Error.
    Where evidence which, if believed by jury, would warrant finding that plaintiff had failed in his contract with defendant, and that thereby defendant suffered injury for which he was claiming damages, court did not err in refusing to take defendant’s counterclaim from jury.
    Policy, J., dissenting.
    Appeal from Circuit Court, Pennington'' County. Hon; Pevi McGee, Judge. • ' ' ' • -'
    Action 'by Gustav Fdenuip, aaginst C. P. Gordon, to 'recover; upon contract. From a judgment for defendant upon his counterclaim, and' from an '-'Her denying plaintiff’s' motion for''directed ■verdict denying tire dOdiniterclaim,; (plaintiff appeals.
    Affirmed.''
    
      Williams & Sweet, for Appellant.
    
      Chas. A. Nystrom,, for Respondent.'
   WHITING, P. J.

The only question presented upon this appeal is the sufficiency of -the evidence to. sustain respondent’s counterclaim.. Appellant assigns as error the refusal of the court to. direct a verdict denying the 'counterclaim and the insufficiency of the evidence to support the verdict ¡which allowed such counterclaim.

The instructions were clearly correct. It follows that, if the court correctly overruled: appellant’s motion for a directed verdict — in other word's, if there was sufficient evidence to go to the jury — such verdict must '.he sustained.

Respondent contends that appellant failed, in his motion for directed'! Verdict, to sufficiently specify the particulars wherein he claimed the evidence to he insufficient. Among the specifications was one to the effect that respondent did not know of'the existence of the facts upon which bis claim rested. Such a specification was clearly insufficient, as respondent’s right of recovery idiid not depend upon his knowledge of the existence of the facts giving such, right of recovery, hut upon the actual existence of' such facts.

There were other ispecifications that were sufficient, but there wias evidence which, if ¡believed by the jury, would warrant the jury in finding that appellant had failed in. his contract with respondent and would also warrant it in finding that, through such failure on, the part of appellant, respondent suffered the injury for which he was claiming damages. The trial court did not err in refusing to take such counterclaim from the jury, as .there wias sufficient evidence to require the submission of same to ¡the jury.

The judgment and order appealed from, are affirmed. '

POLLEY, J.

(dissenting). 'Defendant’s' counterclaim was based upon the loss of two he'ad! of cattle, claimed to have been lost because iolf plaintiff’s, failure to repair a certain pasture fence, but there ¡is no evidence 'whatever to show that such cattle were lost through such cause. The evidence shows that the cattle ¡were in the habit of breaking -through ¡the fence where it was in repair, and are -fully as likely to have been lost through this cause, or -because they were stolen -or driven off, as because the fence was out olf repair.

The judgment on the counterclaim ought to' he reversed.  