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. He 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, taking into consideration the very apparent sale of *Page 122 so-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, Ch. J., and BIRDZELL and CHRISTIANSON, JJ., and JANSONIUS, Dist. J., concur.