I cannot concur in that portion of the opinion holding the evidence insufficient to support the verdict. The proof shows this: Plaintiff held a contract for deed for a farm in which he had agreed to pay $23,200. He had paid $2,000 thereon. It does not matter who received it. Reierson, individually, or as agent, was a party to the transaction and made the trades that caused Vought to make the two payments of $1,000 each. He sold on contract to one Stultz at an advance of $25 per acre. Stultz gave his note for $1,000 and a deed for 160 acres of Wisconsin land as the first payment. Plaintiff got the Wisconsin land. Reierson got the contract and note. Under plaintiff's contract for deed he was entitled to possession. Perhaps he gave the right of possession to Stultz in the sale contract. Stultz being financially embarrassed wrote a letter to plaintiff asking for an extension of time to pay and submitted a written statement of extension in duplicate for execution. Plaintiff executed the extension which in form was addressed to Stultz. It has this recital:
"Possession of said farm is to be given to you October 1, 1921, upon full payment of the amount herein stipulated. All other provisions of said contract of purchase are to stand and be carried out as therein provided." *Page 49
This contract took the place of all other and prior agreements between the parties as to the right of possession. This extension was made on February 10, 1921. It refers to original contract between the parties as dated May 19, 1920. It refers to the payments due March 1, 1921, and extends $2,500 thereof to July, 1921, and the same amount to October 1, 1921. Under this arrangement plaintiff was entitled to possession. Plaintiff talked to Reierson. Plaintiff gave up the farm, i.e., he no longer assumed to handle it as his own. Reierson went to the tenant and demanded the rent. Why? He kept the Stultz $1,000 note. By what authority? He rented the farm to a new tenant. He made improvements on the farm. He was the fee owner. He did not cancel plaintiff's contract. Why not? His assumption of proprietorship over the farm is significant. He told the tenants that he had taken the farm back from plaintiff and that he was going to give plaintiff his money back. Mention is made in the opinion as to the use of future tense which is probably due to the fact that he had not paid — he was yet to do that. Moreover this language was used loosely, perhaps without thought of or reason to suggest what the bargain was but it acknowledges an agreement to "pay Mr. Vought his money back." He did not mention the amount but the record shows that plaintiff had paid $2,000. Reierson kept the farm until his death and his estate now has it. By what right was this possession acquired? Plaintiff concedes that he waived or abandoned his right of possession. Ordinarily he would not do so for nothing. He says he thinks he assigned to Reierson the Stultz contract. The improbability of Vought making the alleged agreement in view of the profitable sale to Stultz, though purely for the consideration of the jury, is of no moment when the record shows as it does that Stultz dropped out of the transaction. It does not show how he was eliminated. Stultz's inability to pay resulting in the extension does not indicate the profits on the sale to him were certain. Reierson must have received some right to collect rents. His unexplained conduct strongly supports the claim of plaintiff. The opinion says that Vought made no demand upon Reierson in his lifetime. The record does not support such a statement. The record is silent. It is fair to say that the record does *Page 50 not show that such demand was made. Reierson is dead. Plaintiff cannot testify as to the talk between them. I am thoroughly satisfied that the evidence and the circumstances justified submitting the question to the jury and that the verdict should be sustained.