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answer, with all of its explanatory allegations in reference to the transaction or contract, can have no weight in determining it, in the attitude in which the record comes to us. At the outset of the trial the court permitted no evidence to be introduced in support of the complaint, and the question must be considered. as though a demurrer had been interposed to the complaint, and its allegations are to be taken as true. The complaint is as follows: That on the 12th day af March, 1889, the defendants were members of the board of directors of the said school township of Delmont, and that the defendants constituted a majority of said board of directors at said date. (3) Plaintiff further alleges that on the 12th day of March, 1889, plaintiff sold to the defendants six (6) copies of Yaggy's Anatomical Study at the agreed price of thirty-five dollars each. That on the 12th day of March, 1889, the defendants executed a written agreement to the plaintiff, of which the following is in words and figures a true copy, towit: Agreement between the undersigned members of the board of directors of the school township of Delmout, in the county of Miner, and State of Dakota, and the Western Publishing House of Chicago, Illinois, for the goods specified on the back of this contract, to be shipped on or about March 20th, 1889, and delivered to the C., M. & St. Paul Company at Chicago, Illinois, properly packed and marked as specified. We, the undersigned, hereby order shipped to us, as named below, six copies of Yaggy's Anatomical Study, at thirty-five dollars each, provided a majority of said board sign this agreement. We agree to pay for the above named goods, A. D. 188. The Western Publishing House agrees to ship said articles in good condition, C. O. D., as specified, on or about March 20th, 1889, and further agrees to accept in payment a registered order on the treasurer of said school township for the amount, with

per cent. interest. which order shall be payable August 1, 1889, at the nearest express office or bank in where the Western Publishing House will send it for collection. Dated March 12, 1889. For and in consideration of the above agreement, the Western Publishing House guaranties that the goods shall in every respect

be equal to sample, otherwise the subscribers are not compelled to accept the same. JACOB BACHMAN, WM. H. MERRILL, H. L. JOHNSON, N. FELLER, F. P. KAVANEY.' On the back of said agreement is an order for shipment, of which the following is a true copy, towit: Western Publishing House, 315-21 Wabash Ave., Cor. Congress St., Chicago, Ill.-Gentlemen: Please ship by Milwaukee & St. Paul R. W. Co., to Jacob Bachman, of Winfred, county of Lake, State of Dakota, six Yaggy's Anatomical Study, at $35.00 each, in accordance with specification in contract on this sheet. E. J. BATTAN, Agent.' (4) Plaintiffs further state that, in pursuance of foregoing agreement, they did on or about the 20th day of March, 1889, deliver to the C.. M. & St. Paul Ry. Co., at Chicago, Illinois, properly packed and directed, and marked to defendants, as specified in said contract, six copies of Yaggy's Anatomical Study, all in good condition, and all of the same being equal in every respect to the sample shown the defendants at the time the foregoing contract was made; that said goods above described reached Winfred, in Lake county, Dakota, in good condition, on or about the 23d day of March, 1889, directed as about stated. That said goods were taken from the freight office at Winfred, and receipted for by the defendants; they paying freight charges. (5) That the above account is still the property of the plaintiff; that said demand is due, and no part of the same has been paid; that the defendants have never delivered to the plaintiff a registered order on the treasurer of said school township of Delmont for the amount due on said contract, or for any amount; that the plaintiffs have demanded of the defendants a registered order on the treasurer of school township of Delmont for the amount due them on the contract above set forth; that the defendants have refused and still refuse to deliver to the plaintiff said order for the whole any portion of the same. (6) Plaintiffs claim there is due them from the defendants on the above claim the sum of two hundred and ten dollars, with interest at the rate of 10 per cent from March 25, 1889. Wherefore the plaintiff demands judgment against the defendants for the sum of two hundred and

ten dollars, with interest at 8 per cent from March 25, 1889, and costs."

The agreement made by the defendants, upon which the plaintiff seeks to recover, does not purport upon its face to be any other contract than one made by themselves. There is nothing in it that would indicate any other than their personal contract, except the words, "the undersigned members of the board of directors of the school township of Delmont," etc. Neither does it appear that the books sold or bought were for the use or benefit of the school township, or any one except the signers of the contract, nor that they had the authority or agency to purchase them for any institution, school or individual. On the face of the instrument, it clearly shows that they were the purchasers for their own benefit; for it says: "We, the undersigned, hereby order shipped to us, as named below, six copies of Yaggy's Anatomical Study, at thirty-five dollars each. We agree to pay for the above named goods." The plaintiff agrees in the instrument to accept in payment an order or warrant issued on the treasurer of said township; but this stipulation does not have the effect to show that this is an obligation of the school township, any more than, if the obligors had promised to pay in county or state warrants, it would tend to make the county or state holden for the contract. Upon the face of the instrument the school township is not bound, nor do any of the allegations of the complaint tend to show any such intention on the part of either party to the transaction. When the goods arrived at Winfred the defendants received and receipted for them in their own names.

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We are construing the complaint, and the contract upon which it is based, with no reference to any outside or extrane ous facts or circumstances attending the execution of the contract, as set forth in the answer, because the answer and those facts have nothing to do with the question before us. What effect the allegations of the answer and the facts and circumstances surrounding the transaction may have, or how they may modify or alter the relations of the defendants in the contract, we are not called upon to say.

Upon the question pre

sented, we are only considering the sufficiency of the complaint to maintain an action against defendants. As it only is before us, we think the court erred in holding otherwise. The judgment is reversed, and the cause remanded for a new trial. All the judges concurring.

PIERCE et al. v. MANNING, Sheriff.

1. Where an action is tried by the court without a jury, and a motion for a new trial on the ground of the insufficiency of the evidence to sustain the findings is overruled, an appeal from the judgment does not present the evidence for review in this court unless error is assigned in the overruling of the motion for a new trial.

2. This court will not examine the question of the sufficiency of the evidence to support either the verdict of a jury or the findings of a court until such question has been presented to the trial court by a motion for new trial.

(Syllabus by the Court. Opinion filed February 24, 1892.)

Appeal from district court, Lawrence county. Hon. CHAS. M. THOMAS, Judge.

Action to recover a stock of goods taken by the defendant as a sheriff under attachment proceedings. Judgment for plaintiff. Defendant appeals. Affirmed.

The facts are stated in the opinion.

Martin & Mason for appellants.

A sale by a failing debtor under circumstances such as should awaken suspicion of his intention to defraud and should put a prudent man on his inquiry is void, even though purchaser gave a sufficient consideration therefor. Davis v. McCarthy, 19 Pac. 356; McDonald v. Gaunt, 2 Pac. 871; Temple v. Smith, 14 N. W. 527; Lane v. Starkey, 18 N. W. 47; Davis v. Birchard, 10 N. W. 557; Tatum v. Green, 21 N. J. Eq. 364;. Wing v. Miller, 20 Pac. 119; Moore v. Williamson, 15 Atl. 587; Gallober v. Martin, 6 Pac. 267; Jones v. Hetherington, 45 Ia. 681; Bartles v. Gibson, 17 Fed. 293; Bedford v. Penny, 25 N. W. 381; Hough v. Dickinson, 24 N. W. 809; Wait's Fraud. Conv. §§

379, 383; Holladay Case, 27 Fed. 849; Baker v. Bliss, 39 N. Y. 70; State v. Estel, 6 Mo. App. 6; Holt v. Creamer, 34 N. J. Eq. 181; Ballman v. Lucas, 36 N. W. 465; Whitmen v. Rose, 4 N. W. 557; Avery v. Johnson, 27 Wis. 246; Williamsson v. Machenheim, 12 N. W. 302; Eigenbrun v. Smith, 4 S. E. 122; Hirsch v. Richardson, 3 So. 569, Tootle v. Dunn, 6 Neb. 93; Bilings v. Sawyer, 4 N. E. 531; Wait's Fraud. Conv. 28; Blennerhassett v. Sherman, 105 N. S. 117; Schmidt v. Opir, 33 N. J. Eq. 138; Gardinier v. Otis, 13 Wis. 460. A grossly inadequate consideration raises a presumption of want of good faith. Weber v Rothchild, 15 Pac. 650; Kempner v. Churchill, 8 Wall. 362.

A vendee can only be protected to the extent of what he paid before he acquired notice of the fraud in the sale. Bush v. Collins, 11 Pac. 425; Clements v. Moore, 6 Wall. 299; 1 Lindley Part. § 287; Mechem Agency, § 718. Plaintiffs opinion as to his damages and prospective injury to his business, is imma terial and incompetent. Bain v. Cushman, 15 Atl. 171; Sharon v. Morris, 18 Pac. 230; Thompson v. Webber, 29 N. W. 671. Van Cise & Wilson for respondents.

The court in making the nunc pro tunc order in the case at bar exceeded its authority. Bostwick v. Knight, 40 N. W. 344; Freeman on Judg. § 56; 1 Black on Judg. § 126; Hyde v, Cushing, 10 Mo. 359; Garrison v. People, 6 Neb. 274; Laws.

§ 4938. Comp.

New findings cannot be added after appeal. Hayne New Trial and App. § 224; Baggs v. Smith, 53 Cal. 88; Pierce v. Manning, 47 N. W. 295.

The defendant's witness denied any fraudulent intent in making the sale, and he is bound by the evidence of his own witness. 1 Wharton Evidence, § 549; Wilson v. Britton, 6 Abb. Pr. 97. The appellate court will not decide the preponderance of conflicting evidence, but will indulge every presumption in favor of the verdict of the jury or findings of the lower court. Caulfield v. Boyle, 2 Dak. 464; Caledonia v. Noonan, 3 Dak. 189, 204; Hayne New Trial, § 288. The appellant has not brought the evidence before this court in any manner for review. Hayne on New Trial and App. § 96; §§ 5236-7 8, Comp. Laws.