dissenting.
Not being able to agree with my associates in the conclusion reached in this case, I will briefly give my reasons for such dissent.
Of the oral evidence submitted to the trial court it was testified in substance by plaintiff that he had practically *372complied with the terms of this last agreement; that he had paid large amounts to defendant, consisting of cash, labor, and the assignments of certain claims which had been collected and appropriated by defendant, until he had complied with the terms in the contract; that it was understood and agreed that all of the payments and transactions between them by which defendant received money were to be applied to the purchase price of the land.
Upon the other hand it was testified by defendant that plaintiff had not complied with the terms of the contract; that the note for $383.05 was not p>aid for more than a year after the execution of the contract, and that all payments made by plaintiff to him were expressly made to be applied upon the rent.
Upon every material inquiry in the case, from beginning to end, there was a sharp conflict in the testimony of the two witnesses, that of defendant being supported in many instances by receipts executed by plaintiff, showing upon their face that the money was to be applied to the payment of taxes and rent for the ground in dispute. A large number of these were introduced in evidence, nearly all of which show the appropriation of money in that way by plaintiff.
It is true that plaintiff in his evidence had testified that defendant prepared all these agreements in writing for him to sign; that he signed them in many instances without reading them and without knowing their contents, and that he was not aware at the time the payments were made that defendant claimed to apply in the way in which it is stipulated in the receipt.
Upon the other hand defendant testified positively and directly that many of the receipts were read by plaintiff, •and those which were not read by him were read to him,' and that he was fully aware of their contents.
The whole matter was peculiarly within the discretion of the district court. The witnesses were before him; he *373saw and heard them testify, and we are unable to say that the finding was unsupported by the evidence.
Assuming that the facts were as stated by defendant, and of this the trial court was the judge, all other questions become immatei’ial to a decision of the case. Whatever may be the right of action of plaintiff as against defendant for the money had and received by him, if more than the amount actually due, need not be here considered, as he doubtless has a remedy.*
A rehearing of the case was subsequently granted and the judgment of the court below affirmed October 7,1890.