Page:North Dakota Reports (vol. 48).pdf/533

 ing the threshing season of 1919 the defendant was out of the city, and’ he wrote to his wife and. directed her to get some one to represent the defendant in making a division of the crop on several farms belonging to the defendant, including the lands cultivated by the plaintiff. She engaged one Hoffein to do this, and Hoffein was present at the time and place when plaintiff threshed the grain which he had raised on the land rented from the defendant. The grain was divided at the threshing machine. Plaintiff’s share of the grain was hauled to an elevator in Kenmare, and defendant’s share was placed in a granary on the premises. Under the terms of the contract the grain was to be divided equally. The last load of wheat threshed, containing some 54% bushels of wheat, belonged to the plaintiff under such division. It is undisputed that this load of grain was put into the granary of the defendant and mingled with the share of grain belonging to him instead of being hauled and stored in the elevator by the plaintiff. The plaintiff testified that Hoffein told him to put this load of wheat into defendant’s granary because the defendant wanted it for seed, and that the defendant would settle with the plaintiff for such wheat. This statement is corroborated by other wit- nesses. Hoffein stated that he had no recollection of any such conversation as that testified to by the plaintiff. He (Hoffein) claimed that the last load of wheat was put in the granary because it was necessary to use the grain tank in which the wheat was contained to receive oats which was then being threshed. Plaintiff further testified that about two weeks after the grain was threshed and the wheat placed in defendant's granary he (plaintiff) went in to make settlement with the defendant; that as he was about to enter defendant’s office, he met Hoffein coming out; that at that time Hoffein said:

“I just been in and talked with Friis and told him how it was. Now you can go in and settle with him.”

Plaintiff further testified:

“Q. Then you went in, did you not? A. I went in.

“Q. And you settled with him? A. Yes, sir.

“Q. And what settlement did you make at that time? A. Well, I showed him a statement, and he said, ‘Well, Hoffein just showed me one.’ He asked me what the price was, and I told him what the price was then. He asked me if I wanted to sell, and I said, ‘No; I am’t going to sell before spring.’ ‘All right,’ Friis said, and that was all that was said.