This is an action on a contract relating to the sale of three car loads of wheat.
It is alleged in the petition that the plaintiff agreed to furnish the defendant, a commission merchant, three cars of wheat to be sold on commission at one dollar and twenty-five cents per bushel, one cent off for e.very pound below fifty-seven pounds per bushel, to test on the basis of St. Joseph, and the plaintiff to ship when notified that it was sold according to agreement; that, defendant notified the plaintiff that said sale had been made and that the shipment was thereafter made accordingly, etc. The only question raised by the defendant’s appeal relates to the action of the court in giving and refusing instructions.
The defendant objects that the first instruction given *320by the court for plaintiff which submitted the case to the jury on the contract theory alleged in the petition is erroneous because there was no evidence adduced to support it. But this objection, we think, can not be sustained. The plaintiff testified that there was such contract entered into and that the wheat was shipped in accordance therewith. It is true that the plaintiff in answer to a question propounded to him by defendant’s counsel on cross-examination appears to have stated that he did not remember that defendant by any agreement agreed to sell the wheat at one dollar and twenty-five cents per bushel, thus seemingly contradicting his previous testimony in relation to the contract. But this matter is cleared up by a letter written by the defendant to the plaintiff on May 9, 1898, in which he states that he had sold the three cars of wheat at one dollar and twenty-five cents per bushel, and that it would net plaintiff over one dollar and twenty cents per bushel. And on the next day, May 10, the defendant again wrote the plaintiff that he had sold the wheat and that his contract was out and unless plaintiff shipped it on the contract he would proceed to buy it to fill his contract and charge plaintiff up with the difference'. So that while it appears that the testimony is somewhat variant as respects the allegation of the contract for the sale of the wheat, we think it was quite ample to authorize the submission of the case to the jury on the contract theory asserted by the plaintiff’s .instruction.
We have examined the several objections urged by the defendant to the plaintiff’s instructions but none of them seem to us to be well founded. There was a conflict in the testimony as to when the plaintiff was to ship the wheat. This issue with the others was fairly submitted to the jury by the instructions and the finding thereon is conclusive on us. The answer admitted that the defendant was indebted *321to plaintiff on account of the shipment of the wheat by plaintiff in the sum of one hundred and one dollars and seventy cents, so that the amount in difference is really less than fifty dollars. ¥e think the judgment is for the right party and it will accordingly be affirmed.
All concur.