FISK, Ch. J. Action to recover the purchase price of three cars of potatoes alleged to have been sold and delivered by plaintiff to defendant at Gardner, this state, in the month of November, 1913. The facts are fairly stated by appellant's counsel and are substantially as follows: "Plaintiffs claims that the defendant purchased from him 1,428 bushels of potatoes at the agreed price of 60 cents per bushel,-total $856.80,— for which he has not received any compensation except a store account which he owed the defendant, amounting to $297.53, for which amount he has given the defendant credit, leaving a balance due the plaintiff of $559.27. Plaintiff claims his contract was completed when he delivered the potatoes in the cars at the tracks at Gardner, North Dakota, and that it then became incumbent upon the defendant to pay the sum due. Defendant's contention is that he shipped the potatoes for plaintiff to the Red River Valley Potato Growers' Association at Barnesville, Minnesota, and that he at no time offered or agreed to buy the potatoes, and denies exercising any ownership whatever over them. The evidence discloses that the defendant was the agent at Gardner for the Potato Company, at Barnesville, to which company the potatoes were shipped. The defendant denies the contention of the plaintiff, but does not deny the amount of bushels shipped, as he did not know how many were delivered at the cars at Gardner and is therefore not in a position to deny the plaintiff's computation as to amount. Plaintiff loaded the potatoes in three cars on or about November 17, 1913, and on or about November 19, 1913. Neither defendant nor plaintiff has received anything as compensation for the potatoes, and the question resolves itself into: (1) Whether or not these potatoes were sold by the plaintiff to the defendant, and delivered pursuant to the terms of sale and were received and accepted by the defendant; or (2) whether defendant merely shipped the potatoes either as agent for plaintiff or for the Potato Growers' Association, disclosing to plaintiff his agency for such association.

"This case was tried to a jury, and a verdict rendered in favor of the plaintiff and against the defendant for the sum of five hundred fifty-nine and 27/100 ($559.27) dollars, with interest at 7 per cent from the 20th day of November, 1913. A motion for a new trial was made and denied, from which order and the judgment herein this appeal is taken."

The case was tried throughout in the lower court upon these clear-cut issues, and at the conclusion of the testimony the learned trial court

34 N. D.-9.

instructed the jury accordingly, having first submitted his instructions to counsel for both parties, who stated that they had no objection thereto. Such instructions are therefore the law of the case, and they very properly limited the jury to a consideration of the simple issues aforesaid.

We are asked to now reverse the judgment and order appealed from for three reasons: First, because the alleged contract of sale and purchase falls within the statute of frauds and is therefore not enforceable; second, because "the plaintiff has proceeded on the theory, both in his complaint and evidence, that there is no distinction between a sale and a guaranty, and that the pretended agreement was either a sale or guaranty or both;" third, because of alleged insufficiency of the evidence. We deem each of the above contentions without merit. The first and second are foreclosed by the instructions, the correctness of which, as above stated, is conceded. Furthermore, the statute of frauds was neither alleged in the answer nor mentioned at the trial, and obviously it cannot be relied on as a defense for the first time in this court. It is elementary that such affirmative defense must be both alleged and proved in order to be of any avail. Not only this, but under the undisputed evidence there was a sufficient delivery of the potatoes to take the contract without the statute of frauds.

As to the alleged insufficiency of the evidence, all that need be said is that, after a careful reading of the testimony, we fully concur with the decision of the trial court in holding that there was such a conflict in the evidence as to not only justify, but require, its submission to the jury. Counsel for appellant evidently so viewed it at the trial, for he at no time there intimated a contrary view. There was a square conflict in the evidence as to whether there was a sale to defendant, or whether he acted merely as plaintiff's agent in handling the potatoes, and, this being true, we cannot disturb the verdict and judgment.

Appellant's contention that his motion for a new trial upon the ground of alleged newly discovered evidence should have been granted has been considered and deemed untenable. Finding no error, the judgment and order are hereby affirmed.

P. J. COSTELLO v. FARMERS BANK OF GOLDEN VALLEY, a

1. To constitute negligence of a property owner in leaving an excavation on his premises unguarded, it must appear that such owner owed a legal duty to the plaintiff to thus guard it, and that he is guilty of a breach of such duty. Trespasser

injury

license - property owner — owes no duty to
wilful or wanton injury.

protection from

2. A property owner owes no duty to a trespasser or a mere licensee on his premises to protect him from injury, other than to refrain from wilfully and wantonly inflicting injuries to such person.

3. Defendant caused a basement to be excavated on its lot, bounded on the north end and east side by public streets. Such excavation was adequately guarded by a fence across the north end and a row or pile of building rock along the east side.

Held, that defendant exercised due care to protect persons from injuries, and that it owed plaintiff no duty to place a guard along the south end, no implied invitation having been extended to the public to travel across the lot where the plaintiff was injured.

4. Under the undisputed facts it is held that plaintiff, as a matter of law, Note.-Cases discussing the duty of an owner of land which licensees are accustomed to cross, to guard against injuries in consequence of changes in the condition, will be found collated in notes in 13 L.R.A. (N.S.) 1126; 39 L.R.A. (N.S.) 217; and it will be found that there are cases both for and against the liability of such owner for resulting injuries.

See also note in 39 L.R.A. (N.S.) 217, on the question of contributory negligence of person injured by falling into hole or excavation.

That the owner of private property is not obliged to make it safe for trespassers or even for mere licensees is in accord with the weight of authority as will be seen by an examination of the cases in notes in 26 L.R.A. 686; and 5 L.R.A. (N.S.) 733, on the liability for dangerous condition of private grounds lying open beside a highway or frequented path.

was guilty of negligence which directly contributed to his injuries. Hence, the trial court properly directed a verdict against him.

Opinion filed April 27, 1916.

Appeal from the District Court of Mercer County, S. L. Nuchols, J. From a judgment in defendant's favor, plaintiff appeals.

Affirmed.

F. E. McCurdy, for appellant.

It is true that a trespasser or mere licensee, going upon the premises of another, goes at his own risk, and the owner owes no duty to him to protect him from injury. But where defendant by his conduct has induced the public to use a way, in the belief that it is a street or highway, and where they suppose they will be safe, an exception to the rule above stated at once arises and renders defendant liable for injuries sustained by one so using such street or highway. 29 Cyc. 450, 451; 3 Shearm. & Redf. Neg. § 706; Black v. Central R. Co. 51 L.R.A. (N.S.) 1215, and case note, 85 N. J. L. 197, 89 Atl. 24; Case note to Habina v. Twin City General Electric Co. 13 L.R.A. (N.S.) 1126; Holmes v. Drew, 151 Mass. 578, 25 N. E. 22; Brinilson v. Chicago & N. W. R. Co. 144 Wis. 614, 32 L.R.A. (N.S.) 359, 129 N. W. 664; Sweeney v. Old Colony & N. R. Co. 10 Allen, 368, 87 Am. Dec. 644; Barry v. New York C. & H. R. R. Co. 92 N. Y. 289, 44 Am. Rep. 377; Beck v. Carter, 68 N. Y. 283, 23 Am. Rep. 175; DeBoer v. Brooklyn Wharf Warehouse Co. 51 App. Div. 289, 64 N. Y. Supp. 925; Larmore v. Crown Point Iron Co. 101 N. Y. 391, 54 Am. Rep. 718, 4 N. E. 752; Hanson v. Spokane Valley Land & Water Co. 58 Wash. 6, 107 Pac. 863; Phipps v. Oregon R. & Nav. Co. 161 Fed. 376.

In this case the general public were accustomed to use that portion of the north lot of the defendant's as a highway, and the defendant, making an excavation there, was bound to protect the people against injury. He owed them this duty. Lerner v. Philadelphia, 21 L.R.A. (N.S.) 630, note; Knoxville v. Cain, 48 L.R.A. (N.S.) 632, note; 25 Cyc. 643. Newton, Dullam, & Young, for respondent.

Actionable negligence is simply a failure to exercise that diligence and skill which is imposed by some legal duty to the person injured. Where there is no such duty, there can be no negligence. O'Leary v.

Brooks Elevator Co. 7 N. D. 554, 41 L.R.A. 677, 75 N. W. 919, 4 Am. Neg. Rep. 451; Trask v. Shotwell, 41 Minn. 66, 42 N. W. 699; Thomp. Neg. & 1228.

There is no such duty owing to a trespasser or mere licensee. In such case it is only necessary that one refrain from the wanton or wilful injury of another. Fisher v. Clark, 41 Barb. 329; Sweeny v. Old Colony & N. R. Co. 10 Allen, 368, 87 Am. Dec. 644; Phillips v. Library Co. 55. N. J. L. 307, 27 Atl. 478; Cusick v. Adams, 115 N. Y. 59, 12 Am. St. Rep. 772, 21 N. E. 673; Gramlich v. Wurst, 86 Pa. 74, 27 Am. Rep. 684.

When the owner of land makes an excavation thereon at some distance from the way and the person falling into it would be a trespasser upon the owner's land before he reached the excavation, there is no liability. Hardcastle v. South Yorkshire R. Co. 4 Hurlst. & N. 67, 28 L. J. Exch. N. S. 139, 5 Jur. N. S. 150, 7 Week. Rep. 326; Ryan v. Towar, 128 Mich. 463, 55 L.R.A. 310, 92 Am. St. Rep. 481, 87 N. W. 644; Briscoe v. Henderson Lighting & P. Co. 148 N. C. 396, 19 L.R.A. (N.S.) 1116, 62 S. E. 600; Johnson v. Paducah Laundry Co. 122 Ky. 369, 5 L.R.A. (N.S.) 733, 92 S. W. 330.

Plaintiff here was a trespasser at the time of his injury. He was not invited to enter upon defendant's premises, either actually or by implication. An implied invitation to enter upon premises exists where benefit accrues to the one who extends such invitation, as where the property is designed or used by the owner for public purposes which are of interest or advantage to himself, and then used in seasonable hours. Parker v. Portland Pub. Co. 69 Me. 173, 31 Am. Rep. 262; Trask v. Shotwell, supra; Thomp. Neg. $$ 985, 988, 990; Corrigan v. Elsinger, 81 Minn. 42, 83 N. W. 492, 8 Am. Neg. Rep. 262; Hart v. Grennell, 122 N. Y. 371, 25 N. E. 354; Cowen v. Kirby, 180 Mass. 504, 62 N. E. 968, 11 Am. Neg. Rep. 261; McClain v. Caribou Nat. Bank, 100 Me. 437, 62 Atl. 144; Zoebisch v. Tarbell, 10 Allen, 385, 87 Am. Dec. 660; Schmidt v. Bauer, 80 Cal. 565, 5 L.R.A. 580, 22 Pac. 256; Walker v. Winstanley, 155 Mass. 301, 29 N. E. 518; Peake v. Buell, 90 Wis. 508, 48 Am. St. Rep. 946, 63 N. W. 1053; Flanagan v. Atlantic Alcatraz Asphalt Co. 37 App. Div. 476, 56 N. Y. Supp. 18, 5 Am. Neg. Rep. 694; Menteer v. Scalzo Fruit Co. 240 Mo. 177, 144 S. W. 833; Herzog v. Hemphill, 7 Cal. App. 116, 93 Pac. 899; Ryerson