Page:North Dakota Reports (vol. 48).pdf/869

 fendant to Shure. Shure had given directions that all flax threshed from the land which defendant had transferred to him, including the Johnson quarter, be hauled to an elevator at Knox and placed in special bin. The flax placed in the granary, as aforesaid, to wit, 112 bushels, was thereafter, by direction of defendant, without the knowledge of Shure or Johnson, hauled to the St. Anthony & Dakota Elevator at Pleasant Lake, N. D., by one Weaver, an employe of the trustee, Shure, and there stored in the name of one E. N. Dokken of Knox, N. D., with whom defendant had had business dealings for many years. About six days later it was sold by, or by direction of, the defendant without the knowledge of Shure or Johnson. The draft or check issued in pay- ment therefor was delivered to defendant and by him handed to Dokken with the request that he indorse the same. Dokken indorsed it by writ- ing his name on the back thereof and handed it back to the defendant, who received the money for it.

The evidence further shows that during absences of the trustee, Shure, from the farm, defendant gave instructions to the workmen.

The grounds and reasons which defendant urges for a reversal of the judgment are:

(a) The evidence is insufficient to justify the verdict, in that he alleges there was no proof of ownership in the trustee of the flax taken by defendant; and

(b) The offense, if any, for which the defendant might have been prosecuted, under the facts in the case, was embezzlement, not larceny.

1. It was the contention of the defendant that the flax in question was the property of Johnson. There is no contention, by either party, that the bank, in whose name the assignment of the mortgage was, and to which the sheriff’s certificate was later issued, had any interest in this flax. Johnson’s right to possession of the flax depends upon the terms of his agreement with defendant, and the question of whether the verdict of the jury is based upon substantial, competent testimony, in turn, rests upon the testimony relative to the agreement between the defendant and Johnson, and, is in brief, as follows: Shure testified as a witness in the case that defendant informed him that he had agreed with Johnson to farm this land during the season of 1918, sow the cul- tivated land to flax, and in case of redemption from the foreclosure was to get a share of the crop. He further testifies that Johnson was pres- ent during all the time this flax was being threshed; that he knew it