[File No. 6038.]

#### THOMAS OSE, Appellant, v. MARY A. O’CONNELL, Respondent.

(246 N. W. 625.)

*114Opinion filed September 13, 1932.

On rehearing January 27, 1933.

*Traynor & Traynor,*for appellant.

*115*Sinness & Duffy,*for respondent.

Burr, T.

This is an appeal from a judgment for tbe dismissal of 'the action with costs.

Plaintiff owned and operated an elevator, in Brinsmade, this State, .•and between August 30, 1925 and September 13, 1929, stored wheat *116belonging to tbe defendant, issuing storage tickets tberefor. He says tbat during said period be made advances to tbe defendant on said grain; tbat neither tbe storage charges nor tbe advances were paid, and therefore be foreclosed bis warehouseman’s lien, and tbat there was a balance due him amounting to $8,619.84. So be asks judgment for this amount.

Tbe defendant admits sbe delivered grain to tbe plaintiff for storage and tbat sbe received advances thereon during tbe times specified; but alleges tbat said storage was incurred and tbe advances made under tbe agreement “that tbe plaintiff would advance to tbe defendant not in excess of seventy-five per cent of tbe market value of such stored grain, and tbat if at any time thereafter tbe market value of said grain declined so tbat tbe said grain was not worth a reasonable amount above tbe advances and storage charges, tbe plaintiff would sell tbe said grain and apply tbe proceeds therefrom to tbe payment of said advances and such storage charges.” Sbe alleges tbe plaintiff sold tbe grain for an amount in excess of tbe advances and charges, tbat be owes her tbe sum of $2,S00 and therefore asks judgment for this amount.

Each party moved for a directed verdict, the jury was dismissed and the court rendered judgment in favor of tbe defendant for the dismissal of the action, making the findings of fact and conclusions of law and order for judgment upon which this judgment was entered.

The plaintiff appeals from tbe judgment alleging tbe court erred in overruling various objections to tbe introduction of testimony and specifically in making findings of fact favorable to tbe defendant.

There is little dispute but that the amount of wheat as found by the trial court was delivered by defendant and tbat during the same period tbe plaintiff advanced to the defendant tbe sum of $9,868. There is some dispute in regard to another alleged advancement of $1,000 claimed by tbe plaintiff; but we need not determine this issue.

The court found the defendant failed to show the price received by tbe plaintiff for the defendant’s grain at tbe time it was sold, exceeded tbe amount of tbe advances made, with accrued interest and proper storage charges. Therefore, the court refused to allow the defendant anything on her counterclaim.

The specifications of error in the admission of evidence deal with overruling objections to tbe examination of plaintiff as to tbe amount *117of stored grain on band during tbe period involved, tbe amount of outstanding storage tickets, tbe introduction of reports to tbe Board of Bailroad Commissioners on stored grain; tbe examination of tbe buyer as to “tbe practice of selling tbe grain and repaying” advances when tbe price of grain declined, and tbe shipping out and selling tbe defendant’s grain shortly after it was received; and in sustaining certain other objections to tbe examination of tbe plaintiff and similar rulings. Further specifications are made with reference to tbe court’s failure to find tbe amount of tbe storage charges, and tbe additional claim for tbe alleged $1,000 advance; that tbe findings made are not supported by tbe evidence, that tbe conclusions are not warranted, and tbe court erred in granting defendant’s motion for judgment.

We have examined tbe evidence with reference to these objections and we find the rulings with reference to admission or rejection of testimony correct.

In view of tbe evidence with reference to tbe contract made between tbe parties there was no prejudice to tbe appellant in failing to find tbe exact amount of storage charges and tbe total amount of tbe advances, even if error may have been committed during tbe examination of tbe witnesses with reference thereto; as what was found far exceeded tbe value of the wheat represented by tbe tickets.

Tbe elevator business of tbe plaintiff was transacted largely by tbe buyer at tbe elevator, and it is clear this buyer bad large powers granted him.

Tbe trial court found, in effect, that “tbe several elevators at Brins-made adopted a policy of advancing up to seventy-five per cent of tbe market value of grain stored in such elevator and continued such practice down to 1929 ; ” and when tbe elevator deemed its security insufficient or doubtful it bad tbe right to sell tbe grain and apply tbe proceeds in payment of tbe advances and tbe storage charges; that tbe first advance made to tbe defendant was on August 30, 1925, and tbe last on August 29, 1929; that when advances were made they ranged from twenty per cent to seventy-five per cent of tbe value of tbe grain at the time of advancement, and that tbe defendant was advised by plaintiff’s buyer and agent “that when tbe price of grain went down so that tbe same was only sufficient to pay or cover advancements, interest and storage that tbe same would be closed out and that defendant *118would bave no further interest in the grain stored on which said advances had been made and defendant in taking- said advancements on her said stored grain understood that to be the agreement between the plaintiff and the defendant and defendant accepted said advances under said understanding and agreement; ” that there is no proof defendant ever agreed to repay any portion of these advances; that a large portion of the storage tickets was in fact kept and held by the plaintiff, but the court was unable to determine which storage tickets were held by either party at any given time; that the price of grain declined sharply and before the time of foreclosure of the alleged warehouseman’s lien the value of the grain was far below the amount of advances made and storage charges accrued; that no attempt was made to get securitj1', or promissory notes or other evidence of debt for the difference and no statement was rendered to the defendant showing the advances, interest accrued or storage charges due; that long after the market value declined below the value of the grain stored the plaintiff purchased additional grain from the defendant and paid her for the same without suggesting the application of this grain on any claim he had; that the grain received for storage was in fact sold by the plaintiff shortly after it was received, and during the period involved it was not an infrequent occurrence for the plaintiff to find he had less grain on hand than the grain represented by outstanding storage tickets.

The appellant himself testified that in August 1929 he had but 4,118 bushels of wheat and 4,150 bushels of durum on hand though the storage tickets of defendant alone called for 5,436 bushels of wheat and 5,797 bushels of durum, and he testified that in August 1930 he had on hand but 4,146 bushels of wheat and 4,216 bushels of “grain” though there was outstanding on storage, in addition to the defendant’s storage 1,550 bushels of wheat and 686 bushels of “grain,” and it was at this latter time he went through the form of foreclosing his warehouseman’s lien.

Defendant testified that before any foreclosure took place appellant’s agent said: “I was out; I had no more equity in them tickets; I was the loser.” Iler daughter testified that the buyer, on presentation of tickets to get more money, said: “They are dead. Your mother has no more interest in them. The best thing for you to do is to put a man to haul wheat in to town,” that she said: “Well, if they are dead -what *119is the use of keeping them,” and that he replied: “Well, I don’t know as it makes much difference. I suppose you can just as well take them,” but at the same time he kept some and the ones she had she took back with her.

Appellant testified on examination before trial that only once or twice did he “carry any grain in storage in the terminals in Minneapolis or Duluth; ” that about once a year he'weighed out the grain in his elevator and on July 1, 1930, he had on hand an amount equal to about ten per cent, of outstanding storage tickets, including the defendant’s tickets. On the trial he testified to the same effect.

When the buyer was asked by appellant’s counsel if there was “any agreement to sell her grain . . . when the advance and the market price got close together . . . that you were to sell the grain for her,” he answered: “No, not that I remember;” that he “couldn’t sell a person’s grain without authority;” that he had no “understanding . . . to sell the grain without her bringing in the ticket and authorizing” him to sell, and that there was no talk about that. Later he stated he could not remember whether she told him to sell when “the price of grain came down nearly to the amount of the advances” whether she came in or not.

Upon the findings related, and others in harmony therewith, the trial court found that the agreement and contract alleged by the defendant was in fact made; that the plaintiff had sold her grain in accordance therewith and therefore had no claim against the defendant for the amount demanded.

These findings are challenged by the plaintiff; but there is ample evidence in the record to sustain them. It is true there is a conflict in the testimony, and counsel for plaintiff argue that the probabilities arising from ordinary business transactions are with the plaintiff; particularly as defendant and her immediate family had, for years, been customers of plaintiff. On the other hand it may be argued that the probability is no grain buyer would keep making’ advances to a customer on a falling market and to the extent depicted here, nor pay cash for later purchases, nor not attempt to get additional security, nor delay foreclosing the warehouseman’s lien for almost a year after the last advance and until after his bank failed.

In an action properly triable to a jury, but tried to the court, the *120findings of the trial court on disputed matters of fact are presumed to be correct and are adopted by this court imless clearly against the preponderance of the evidence: See Baird v. Goforth, 54 N. D. 805, 211 N. W. 587; Andersen v. Resler, 57 N. D. 655, 664, 223 N. W. 707; Zuber v. Erickson, 58 N. D. 322, 226 N. W. 510; Fuller v. Reed, 60 N. D. 680, 236 N. W. 267; Lincoln Nat. L. Ins. Co. v. Sampson, 61 N. D. 611, 619, 239 N. W. 245.

Appellant says that even if the agreement alleged by the defendant was made the defendant was under obligation to prove her grain “was in fact sold at a price sufficient to pay her indebtedness to the plaintiff,” and further raises the question of whether the plaintiff was required to make the sale or had the option of declining to sell — though not stating it in such terms.

The finding of the trial court to the effect that the plaintiff had possession of the greater number of the storage tickets is supported by the evidence, and there is no contention that any of the tickets were sold by the defendant.

The agreement as alleged shows a contract to loan money on the stored grain rather than the sale of grain for the amount advanced; but we need not discuss whether there was an option given to the plaintiff. If he did sell the grain shortly after it was received and did not keep wheat on hand to satisfy the tickets then we must determine whether it was in accordance with the agreement or a conversion. The evidence shows conclusively that the plaintiff sold the grain from time to time shortly after it was received. An attempt was made to show that he “hedged” on such sales; but we are not required to determine the legal validity of such process. There is no sufficient proof of “hedging” it to show that this method was resorted to at the time of the sale of defendant’s grain.

As pointed out already appellant did not retain enough wheat to satisfy outstanding tickets at the time of foreclosure or at many times prior thereto.

The sale itself was a conversion (Stutsman v. Cook, 53 N. D. 162, 204 N. W. 976) unless made in conformity with the agreement, and was made long before the depreciation in the value of the grain. The court found that the sale was made in conformity with the contract, *121and said finding should be sustained in accordance with tbe evidence rather than one which finds a conversion.

No reversible error being shown the judgment is affirmed.

CiiRistiaNSON, Oh. J., and Nuessle, and Birdzell, JJ., and Jan-sonius, Dist. J., concur.

Mr. Justice Burice did not participate, Hon. Bred Jansonius, Judge of the Sixth Judicial District, sitting in his stead.

Burr, J.

(On rehearing.) A rehearing was granted and the matter again presented to the court — the main emphasis being laid on the weight and effect of the evidence introduced.

We have again reviewed the evidence and while it is suggested the court could remand the case for the taking of further testimony there is nothing to indicate further evidence can be secured, and this is not a case properly triable to the court.

We are required to consider a state of dealings between the parties which continued for years and which partake more or less of a fiduciary nature. As pointed out the transactions had were largely between the defendant and an agent of the plaintiff. Naturally neither the agent nor the defendant could be specific in many things because of the lapse of time and the fact that any agreement had was oral. It is true the grain was stored according to the terms of a written contract— but an agreement to loan money on the stored grain and to sell the stored grain when its value fell to the level of the amount of the advances with interest and storage charges, did not need to be in writing, and was not.

As pointed out in the main opinion the plaintiff did not keep in storage the amount of grain represented by outstanding tickets. We do not assume he would wilfully convert the grain of the defendant. lie must have sold it or other grain, and if he sold her grain it has some bearing upon the question of whether there was a contract to sell as alleged by the defendant. There is nothing in the record to show that when he made the attempted foreclosure sale he had sufficient grain on hand to cover all outstanding storage tickets and it is the claim of the defendant that her grain had been sold long before.

The trial court, tailing into consideration the very apparent sale of *122so-called stored grain, the dealings of the parties over ' a period of years and the claim of the defendant that there was this. contract between the parties to sell defendant’s stored grain when the amount of the advances with interest and storage charges reached the level of the value of the grain, found the defendant had proved this contract, and in the main opinion we held there is sufficient evidence to justify this finding. After a careful and exhaustive review we have decided to adhere to the former opinion.

Nuessle, Oh. J., and Bikdzell and Cheistianson, JJ., and Jaet-soNius, Dist. J"., concur.