Page:North Dakota Reports (vol. 48).pdf/435

 ing to a total of $4,196.85. Prior to the time the defendant delivered to the Elevator Company the above-mentioned number of bushels of actual rye, he agreed with it that it should pay him $1 per bushel for each bushel of rye hauled to the elevator, as he claimed it was necessary for him to have this amount to pay the threshing expense, etc., the balance of the selling price of the rye so delivered to be applied on the loss to which reference has heretofore been made. The Elevator Company. did make certain advances to the defendant, which with interest, together with a note to the Nortonville Bank of $150, aggregated $2,486.85. amount, deducted from the $4,196.85, the selling price of the actual rye, left remaining $1,710, $1,505 of which was indorsed by the Elevator Company on the loss account which had occurred from the time of the execution and delivery of the note of $4,000 until the transaction was finally closed in July by the purchasing on the market of the 10,000 bushels. The remaining $205 was indorsed by the Elevator Company on the note.

The defendant's testimony in substance is that he directed the $1,71O to be applied upon the $4,00o note, while Steel testified in substance that it was to be applied first upon the loss account due to the rye transaction, and the balance on the note. The defendant testified in substance that he This gave the plaintiff no direction to apply any of the money on the loss account, and that he knew of no charge or account against him except that represented by the note.

Defendant attempts to show that the loss at the date of execution and delivery of the note was $3,000, while the testimony of Steel is that the losses equaled the amount of the note. The testimony of each shows that the total loss was $5,505, $25 of which was commission charged by the Tenney Company.

The testimony of the defendant is to the effect that the whole rye transaction except where the actual rye was delivered was a speculation. It will serve no useful purpose to set forth any of the evidence in detail. There is only one assignment of error, which may be divided into two important contentions:

(1) That the court erred in granting plaintiff's motion for a directed verdict made at the close of the trial, and in not submitting the issues to the jury.

(2) That there was a direct conflict in the evidence on a number of material issues, and for this reason it is claimed that the facts of the case