Page:North Dakota Reports (vol. 48).pdf/379

 a criminal act on the part of Gobernatz, and it cannot be assumed that such an offense was committed by him, where the evidence going to negative other sources of the grain sold is not stronger and more direct than that in the instant case. The source of wheat sold is not ordinarily a fact so difficult of proof as to require its establishment by evidence which is so remote and circumstantial as that in the instant case. The facts in this case are scarcely distinguishable from the facts in the case of State Bank v. Bismarck Elevator & Investment Co., 31 N. D. 102, 153 N. W. 459, in which it was held that the evidence did not do more than give rise to a suspicion. It was there held that a verdict founded on surmise, conjecture, or guess alone was not sufficiently supported by evidence.

For the foregoing reasons, we are of the opinion that no error was committed in entering a judgment of dismissal, and it is affirmed.

, C. J., and, , and , JJ., concur.

THEODORE MEYER, as Receiver of Farmers’ Co-operative Creamery Company, a corporation, Appellant, v. Charles Hernett, Respondent.

Corporations—in action by receiver against treasurer for accounting, evidence held to sustain judgment of dismissal.

1. In an action for accounting, the evidence is examined, and held to sustain a judgment in favor of the defendant for a dismissal of the action.

From a judgment of the District Court of Logan County, Graham, J., plaintiff appeals.

Affirmed.

S. E. Ellsworth, for appellant.