Page:North Dakota Reports (vol. 48).pdf/870

 was being threshed; that he knew it was being delivered to the elevator at Knox. The record is silent as to whether Johnson made any objection thereto.

The agreement between Johnson and defendant is further evidenced by letter written by defendant to Johnson, care of Attorney Siver Serumgard, in which he says:

“Mr. J. E. McCarthy has just showed me your letter of the 7th inst. regarding renting your land foreclosed on by Security Bank of Knox, and I accept your terms stated therein and will apply one-third of the proceeds of the flax crop after payment of one-third of, the thresh bill by you on the above foreclosure.”

The defendant testified the agreement with Johnson was to the effect that, if there was not sufficient money derived from the one- third of the crop to take up the certificate, then the proceeds of such one-third were to be paid over to Mr. Johnson. Neither the state nor defendant called Johnson as a witness.

From this evidence, somewhat conflicting, the jury might reasonably find, as they did find, in arriving at their verdict, that Shure was the owner, as trustee, of the flax in question, or that as such trustee he was entitled to the possession thereof.

The question of ownership or right to possession of the flax was fairly submitted to the jury by the instructions of the trial court. In his instructions the court said:

“It is the claim of Mr. Ugland that he took this property, not intending to steal it, but that he took, as he claims, in good faith; on be- half of Mr. Johnson, or in order to protect the rights of Mr. Johnson, as he claims; and, in passing on the guilt or innocence of the defendant, you shall carefully consider the claims of the defendant in that respect, as well as all other claims he makes in this lawsuit.”

That the question of the ownership or right to possession of this flax was actually considered by the jury is further shown by the request of the jury, after retiring, for further instructions concerning this phase of the case. The jury was brought into court, and, after a colloquy between members thereof and the judge, the following additional instruction was given:

“To make the taking larceny, the grain must either have been the property of Mr. Shure in his capacity as trustee, or else in his possession as trustee of the Ugland estate under the farming agreement of