Page:North Dakota Reports (vol. 1).pdf/353

 or “bin burned” to an extent that destroyed the germ, so that it would not sprout. A witness, who examined the wheat some weeks after it was sown, testified that not more than one-half of the seed grew; that the kernels were soft, and gave no indications of growing; and James Halley, plaintiff's husband, testified that the poor quality of the seed was not known until after it was sown. Young Halley, the son who hauled the wheat, testified that he held the sacks into which the wheat was placed, but that he noticed nothing wrong about it. Another witness, an experienced farmer, who was present getting some of the same wheat for himself, testified that he told young Halley that he did not think the wheat was No. 1, but thought it would make good seed. There was also a difference of opinion among the witnesses as to whether or not bin-burned wheat would grow. This evidence tended to show that the defect was one not readily discovered on casual examination, and that it might require special knowledge to detect it. Whether or not there was a warranty or whether or not plaintiff by herself or agent accepted and received the wheat knowing or having reason to believe that it did not comply with the warranty, were matters fully and very fairly submitted to the jury by the learned trial judge. The law covering the point raised by the instruction refused was correctly given to the jury in the charge of the court.

It is assigned as error that the verdict is against the charge of the court, because the court charged the jury that in order to find a verdict for respondent they must find certain propositions sustained by a clear preponderance of evidence, and it is claimed that the preponderance of the evidence is against each of these propositions. But it must be evident that we can never disturb the judgment on this assignment until we are willing to substitute the views of this court as to the weight of testimony for those of the jury. It needs no citation of authorities to show that we cannot do that where there is any substantial conflict in the testimony, as there certainly is in this case. Appellant had testified that he did not care to sell wheat to respondent, and was asked by his counsel to explain why. Under objections, the appellant was not permitted to explain. The