Page:North Dakota Reports (vol. 48).pdf/822

 was paid; that he showed him the books where he had made that settlement of the grain. He received payment from the elevator for 557 bushels, 30 pounds. This was No. 1 Nor. wheat and the price then was 88 cents. The memorandum, on the stationery of the defendant, shows 557 bushels, 30 pounds, After threshing was finished he made demand from the defendant. The agent of the defendant advised him that Myatt got his cash ticket. Myatt left September 3oth, and the plaintiff has not seen him since. The defendant’s answer is in the nature of a general-denial. The former agent of the defendant at Sawyer did-not testify, having gone, years ago, to British Columbia. The superintendent of the defendant testified. He produced its books of business at Sawyer, its canceled checks and storage tickets for the year 1909 and beyond, but not the scale book, which was lost or taken. The evidence in these books tends to show that the defendant did not receive the grain as testified Ly the plaintiff, and that the price of the grain, so received by the elevator company, was paid to the plaintiff, excepting one check of $86.25 for 98 bushels paid to Myatt. The trial court, by reason of the delay in this action, refused to permit the plaintiff to recover a greater price for the wheat than that existing at the time of the conversion. The defendant requested a special verdict. The jury, by its special verdict, found that defendant received 1,115 bushels of wheat; that the price then was 88 cents; that it paid plaintiff for 557 bushels 30 pounds, and another person for the balance; that Myatt then owed the plaintiff $2,773.34. Upon this verdict, returned February 3, 1920, the trial judge, on February 10, 1920, ordered judgment for $490.60, with interest thereon at 6 per cent. from September 30, 1909. Judgment accordingly was entered May 7, 1921, for the total amount of $891.18. The defendant has specified 34 assignments of error. In general, it contends that the trial court erred in not dismissing the action, pursuant to § 7598, C. L. 1913; that the trial court erroneously received oral testimony concerning ownership of the land; that the cropper's contract was improperly received in evidence; that the evidence of delivery of the grain is insufficient to warrant recovery; that the plaintiff failed to prove indebtedness owing by Myatt to him; that remarks of the court in the presence of the jury were prejudicial; that the market value of the grain was established without proper foundation; that the court erroneously gave general instructions in submitting the special verdict; that the