tion on his judgment, and by virtue thereof the land was sold to him, on May 2, 1904, for a sum equal to the amount of the judgment and costs, and the sheriff returned the execution satisfied in full. No redemption was ever made from either the foreclosure sale or the execution sale, and the defendant became the absolute owner of the land on October 24, 1904. Thereafter, and on November 7, 1906, the plaintiff commenced this action in the district court of the county of Polk to recover from the defendant the surplus arising from the foreclosure sale. The trial court, upon the facts stated, rendered judgment for the plaintiff for the amount claimed, from which the defendant appealed.

It is true, as plaintiff claims, that his judgment was a lien on the surplus arising from the mortgage foreclosure sale, and he was then entitled to have the amount thereof applied to the extinguishment of his judgment pro tanto. Brown v. Crookston Agricultural Assn., 34 Minn. 545, 26 N. W. 907; Fagan v. People's Savings & Loan Assn., 55 Minn. 437, 57 N. W. 142. The question, however, presented by the record is not whether the plaintiff had at one time a lien on the surplus, but it is whether he is now entitled to the surplus.

After the surplus fund was brought into existence by the foreclosure sale, the plaintiff's judgment was a lien on the land, subject to a prior lien thereon to the amount for which it sold on the foreclosure sale. He also had a first lien on the surplus, by virtue of his judgment; but he was entitled to only one satisfaction of his judgment. If, then, on the execution sale a third party had purchased the land, subject to the prior lien, for an amount sufficient to satisfy in full the plaintiff's judgment, and the execution had been returned satisfied in full, no one would claim that the plaintiff could thereafter assert any claim to the surplus, for his sometime lien thereon would have been extinguished by payment of the judgment, precisely as it would have been if the plaintiff's judgment had been a lien on two separate parcels of land, and he had sold one of them on execution for the full amount of his judgment. Nor could such purchaser, in case he elected not to redeem from the foreclosure sale, claim the surplus. Now, the fact that the plaintiff, and not a third party, purchased the land at the execution sale, is wholly immaterial, for in either case the judgment would be satisfied by the return of the ex

ecution satisfied, and the lien on and right to the surplus would fall with the payment of the judgment by execution sale. We accordingly hold that the plaintiff was not entitled to the surplus when this action was commenced.

The case of Fuller v. Langum, 37 Minn. 74, 33 N. W. 122, relied on by plaintiff, is not in point. In that case the plaintiff foreclosed his mortgage, which was a second lien on the mortgaged premises, and purchased the land at the sale. Three months afterwards another mortgage, which was the first lien on the premises, was foreclosed, and the balance of the proceeds from the foreclosure sale, after satisfying the first mortgage and all costs, amounted to $1,100. It was held that this surplus belonged to the plaintiff. The distinction between that case and this one is obvious. In the case cited the plaintiff, in case there had been no redemption from his own sale, would have been the owner of the premises, subject to the lien of the first mortgage; but by the sale on the foreclosure of that mortgage the amount necessary to be paid on redemption therefrom was increased by $1,100, the amount of the surplus, or, in other words, the value of the plaintiff's lien on the premises by virtue of his mortgage and certificate of sale was, as a necessary incident to the sale of the premises on foreclosure of the first mortgage, decreased by just the amount of the surplus-that is, the surplus came from his interest in the mortgaged premises, and his lien thereon, to the extent represented by the surplus, was transferred thereto.

It is suggested that, inasmuch as the mortgagor does not claim the surplus, it should be paid to the plaintiff. The mortgagor is not a party to this action, and the record is silent as to whether he makes any claim to the surplus; but, this aside, the only question arising on the record is whether the plaintiff has shown himself legally entitled to the surplus.

The judgment must be reversed, and case remanded, with direction to the district court to amend its conclusion of law so as to direct judgment for the defendant on the merits. So ordered.

NICHOLAS BURGRAF v. JOIN T. BYRNES.1

Burden of Proof-Review.

May 29, 1908.

Nos. 15,614-(161).

Where a party erroneously assumes the burden of proof as to a particular fact, the mistake will not be corrected in the appellate court. Assignments of Error.

Assignments of error examined, and found not to justify reversal of a decision in favor of defendant, against whom it was sought to recover damages for the alleged unauthorized compromise of a judgment.

Action in the district court for Meeker county to recover $260 for an unauthorized compromise of a judgment for $374. The case was tried before Powers, J., and a jury which returned a verdict for defendant. From an order denying his motion for judgment notwithstanding the verdict or for a new trial, plaintiff appealed. Af

firmed.

Alva R. Hunt, for appellant.

M. C. Brady, for respondent.

JAGGARD, J.

This was an action to recover damages for the alleged unauthorized compromise of a judgment. Judgment on the pleadings for defendant was reversed. Burgraf v. Byrnes, 94 Minn. 418, 103 N. W. 215. An order granting defendant a new trial on recovery of $309 was affirmed. 99 Minn. 517, 109 N. W. 1132. Plaintiff then obtained a verdict for $310. This court again affirmed an order granting . a new trial. 102 Minn. 511, 113 N. W. 1133. On the last trial defendant secured a verdict. This appeal was taken from an order denying plaintiff's motion for judgment notwithstanding the verdict or for a new trial.

One principal question in the case concerns the refusal of the court "to direct a verdict for the full amount of damages, as measured by the judgment and interest, on the ground that the presumption is that the judgment is worth its face value.” The court charged that the real question for the jury to determine was how much the judgment was worth. It is unnecessary in this case to consider or determine whether the judgment was presumed to be worth its face value until proved to be of less value by the defendant, and whether the burden rested on the defendant, and not on the plaintiff, to show the value of that judgment; for the plaintiff assumed that burden and undertook to show the actual value of the judgment. Plaintiff, instead of electing to stand on the theory on which he now bases error in the rulings of the court introduced affirmative evidence by which the actual value of the judgment was sought to be shown. Having elected so to do, he is in no position to complain of the acceptance by that court of his position. He is within the rule that "where a party erroneously assumes the burden of proof as to a particular allegation or the burden of evidence as to a particular fact, the mistake will not be corrected in the appellate court." 16 Cyc. 926В; 2 Сус. 675 (IX); Geiser Mfg. Co. v. Yost, 90 Minn. 47, 95 N. W. 584; Earl Fruit Co. v. Thurston Cold-Storage & Warehouse Co., 60 Minn. 351, 62 N. W. 439; Benjamin v. Shea, 83 Iowa, 392, 49 N. W. 989. And see Denton v. Chicago, 52 Iowa, 161, 2 N. W. 1093, 35 Am. 263; Stewart v. Outhwaite, 141 Mo. 562, 44 S. W. 326. “When parties consent to try their case upon a certain theory of what the law is, though it be erroneous, they cannot complain at the result, if it be correct according to that theory." Davis v. Jacoby, 54 Minn. 144, 55 N. W. 908. And see 66 Cent. Law J. 291.

Plaintiff also has urged, within this rule, that the evidence showed that plaintiff was entitled to recover a substantial amount, that the court erred in refusing to charge the jury that under the evidence it must find for the plaintiff in some amount, and to direct a verdict because upon the evidence plaintiff was entitled to a verdict for the full amount of the judgment after deducting the $150 received. An examination of the record has satisfied us that, within the familiar rule on the subject, no reversible error is thus presented in this regard.

Plaintiff's assignments of error number twenty three. Those previously referred to seem to constitute the basis of this appeal, and to be the only ones calling for special reference. The others have been examined, and found not to justify reversal.

Affirmed.

HOBE LUMBER COMPANY v. JAMES E. McGRATH and Another.1

In a written contract for the sale of lumber, no grades were specified, but special reference was made to a certain price list, and the prices therein named for the different grades mentioned in the list were adopted as the price for lumber purchased. Held, the character and quality of the lumber purchased was limited by the contract to the price list, and the contract was not rendered indefinite and unenforceable for the reason that a certain grade of lumber was not mentioned in the list.

Action in the district court for Pine county to recover $9,500 damages for the breach of a contract. The case was tried before Stolberg, J., and a jury which returned a verdict for plaintiff for $4,000. From an order denying their motion for a new trial, defendants appealed. Affirmed.

J. N. Searles, for appellants.

Gjertsen & Lund, for respondent.

LEWIS, J.

The parties to this action entered into a written contract as follows:

The Pine City Lumber Co. agrees to sell said Hobe (Lumber Co.] lumber of their 1905 season's cut of white pine lumber manufactured at Pine City, Minn., and guarantees said lumber not to contain over 15 per cent. tamarack, balsam, and spruce, and to furnish between 3,000,000 to 4,000,000 feet. The lumber company agrees to pay for said lumber on the basis of $2.50 off Mississippi Valley list of May 8, 1905, and to pay for same as follows: For invoices of the month of shipment, the following month 1st, less 2 per cent. on the 15th of the following month less 1 per cent., and to ship out all lumber within May 1st, 1906. Provided Pine City Lumber Co. finishes manufacturing same within November, 1905.

Reported in 116 N. W. 652.