Page:North Dakota Reports (vol. 48).pdf/438

 not be sufficient reason for granting a new trial. Instead thereof, this court could, with consent of plaintiff, order the judgment modified so that the defendant would obtain benefit equal to that which he claims he would have received had the money been indorsed on the note instead of applied to the payment of the account.

The note bore 7 per cent. interest before and 10 per cent. after maturity. The account drew the legal rate of 6 per cent. per annum. And assuming, but not deciding, that defendant directed the $1,710, the balance of the price of rye sold to the Elevator Company, after deducting the amount it advanced him for expenses to which reference heretofore has been made, to be applied on the note, it is clear that he would be entitled only to a credit of the difference between the interest at the rate the note bore, and interest at the legal rate on the amount paid since the date of payment, and if the judgment is so modified there would be no issue remaining for a new trial. The plaintiff on oral argument consented that this modification might be made. Plainly, under the evidence the defendant is entitled to no other relief. The judgment is therefore directed to be modified as above indicated, and so modified it is affirmed. Respondent is entitled to his costs and disbursements on appeal.

}},, and , JJ., concur.

, J. (concurring). I agree with Mr. Chief Justice that the only question for the jury in this case was whether the defendant directed the plaintiff to apply the $1,710 upon the note. Upon all other issues of fact there was no conflict in the evidence, and no room for different conclusions to be drawn by reasonable men. Furthermore the evidence was such that it is manifest that there could be no different result upon another trial. In other words the disposition made of the case in the opinion prepared by the Chief Justice is the most favorable to the defendant that could possibly be made upon another trial. And upon the oral argument plaintiff's counsel stated that in event this court should hold that the question as to the proper application of the $1,710 was one for, and should not have been withdrawn from, the jury, that then the plaintiff, in order to terminate the litigation, would and did consent that the issue might be determined against it, and the judgment modified accordingly by this court. Hence I concur in the disposition made of this caąuse in the opinion written by the Chief Justice.