On rehearing, respondent insists that the writing or order given by Laidlaw, cashier of the plaintiff bank, to John Nelson, viz.: "Please give John Nelson a statement sell all grain in his name E.E. Currier," is at most an order to sell only the grain stored in the names of the said John Nelson and the said E.E. Currier, that is, in their joint names, and it was not authority to sell any other grain.
We are of the opinion that the petitioner is right in his construction of the contract, and the question of the construction of the order should not have been submitted to the jury, but such order should have been construed by the court to be an order to sell the grain stored in the names of John Nelson and E.E. Currier jointly, and if there was any other grain sold to the defendant, upon which the plaintiff had a mortgage, the plaintiff would be entitled to recover the value of such grain.
It is also the contention of the petitioner that this court failed to construe the legal effect of defendant's exhibit "A," the writing or order given by said Laidlaw to Nelson, as to whether or not it constitutes a waiver of plaintiff's mortgage. After the re-argument and further consideration of the document, we are of the opinion that a *Page 154 reasonable construction of the document is, that it is an order to give to John Nelson, the party who raised the grain, a statement of the amount of grain stored in the names of John Nelson and E.E. Currier, and to sell such grain. Laidlaw rented the land upon which the grain was grown to Nelson, and he made the deals with Nelson for the notes and mortgages under which plaintiff claims the right to recover in this action. Nelson knowing that the plaintiff bank had a mortgage on the grain naturally went to Laidlaw, who knew all about the deals, for an order to sell the grain and Laidlaw admits that he gave him the order. If Mr. Laidlaw had authority to give such an order to Nelson, there is no question but what the elevator company would be entirely justified in selling the grain and delivering the proceeds to Nelson. It is not a question of whether there was a waiver of any securities but a question of whether Laidlaw had authority to give such an order. If it was error to overrule plaintiff's objection to the admission of defendant's exhibit "A" it was not such an error as would entitle plaintiff to judgment notwithstanding the verdict but would be ground for granting a new trial.
The motion for a new trial should have been granted and with modification of our former opinion, as above indicated, the case is reversed and remanded for a new trial, costs to abide the result.
NUESSLE, Ch. J., and BURR, BIRDZELL and CHRISTIANSON, JJ., concur.