Page:North Dakota Reports (vol. 48).pdf/355

 force, all of said crops heretofore mentioned were damaged and partly destroyed by hail; that by reason of such destruction the defendant was damaged in the sum of $1,000; that defendant has fulfilled all of the conditions of the insurance policy on his part required to be kept and performed and gave plaintiff due notice and proof of such loss; that, although said plaintiff examined such loss, it failed, refused, and neglected to pay the defendant therefor. The plaintiff interposed a reply, wherein it alleged that upon notification of the loss it sent its adjuster, who, on or about August 19, 1910, adjusted the loss at $66, and that said amount was credited upon the note. In the reply it is further alleged that, inasmuch as the defendant did not notify the secretary of the plaintiff association that he was dissatisfied with the adjustment and demanded a readjustment, the adjustment so made became binding upon him by virtue of the provisions of the by-laws of the association. The cause came on for trial upon the issues framed by these pleadings. At the conclusion of all of the testimony both parties moved for directed verdicts. The court thereupon discharged the jury and made findings of fact in favor of the defendant and against the plaintiff. The court found that defendant had been damaged in the sum of $1,000 and ordered judgment in his favor for that amount. The plaintiff has appealed from the judgment entered upon such findings.

The only question argued on this appeal relates to the sufficiency of the evidence submitted by the defendant as to the amount of damages sustained. A careful consideration of the evidence leads us to the conclusion that there is substantial evidence in support of the findings of the trial court. It is true the defendant admitted that he did not remember the value per bushel of the grain at and prior to the time of the hailstorm, but in answer to the last questions asked him he testified positively that the crop destroyed was worth at least $8 per acre. He also testified that up to the time of the hailstorm the crops looked good; that he threshed only 175 bushels of wheat; and that prior to the hailstorm he figured the wheat was good for 10 bushels to the acre. Elsewhere he testified that he originally estimated his loss at about 9o per cent., but on sending in a report of the loss put in a claim wherein the loss was stated to be in amounts ranging from 40 per cent. on flax and barley to 80 percent. on wheat.

Plaintiff attempts to demonstrate that defendant’s loss, according to his own testimony, could not have been as much as the court allowed. This is based upon taking the number of bushels of grain which the de-