ON APPLICATION FOR REHEARING.
The petition for a rehearing in this case will be denied. We think a new trial would not be in furtherance of justice. The ground upon which a new trial is asked would be wholly insufficient if the action had been tried to a jury, and a motion for a new trial had been addressed to the District Court. The only ground for a new trial urged is that at the trial before the District Court the defendant omitted to offer evidence of the value of the grain at the time of its conversion by the defendant. But a mere failure to put in evidence furnishes no ground for a new trial. This is elementary. It is true that chapter 5 of the Laws of 1897 permits this Court, in cases tried here anew, to grant a new trial in exceptional cases, and where a new trial is absolutely necessary to the accomplishment of justice. This feature of the statute is novel, and precedents are therefore not available to enlighten'this Court as to a proper exercise of the discretion conferred by the statute. But, in actions at law coming here to be tried anew, it will, in our opinion, be a safe general rule — subject to possible exceptions — to be coritrolled by the authorities and well-established principles of law which govern the granting of new trials in actions tried to a jury. Guided by such authorities and principles of law, the plaintiff is not entitled to a new trial of this action, for the reason already given.
But, in our opinion, a new trial should be denied for reasons other than technical. It appears that the defendant, in receiving the wheat into its warehouse and issuing storage tickets therefor, acted innocently, and with no notice, actual or constructive, of plaintiff’s ownership of the grain. In fact, the plaintiff in effect directed Adam Murry to store the wheat in defendant’s warehouse. In due course of business, the defendant, after becoming responsible for the wheat to the holders of the storage tickets, shipped the same out of the state. The defendant, under these circumstances, became responsible for the wheat, and could be compelled to deliver the same to the holders of the storage tickets therefor. Doubtless such wheat had been delivered at a date long prior to the commencement of this *210action. If, after such delivery of the wheat, the plaintiff should recover for its value, the obvious practical result will be to impose upon the defendant a double liability. This, certainly, would work a hardship, which should be avoided, if possible without a violation of settled principles of law. As we have already shown, the plaintiff has had her day in court, and an opportunity to recover at law, and has failed, and that she is now unable to advance any legal reason for a new trial.
(77 N. W. Rep. 608.)Finally, a denial of a new trial does not leave the plaintiff remediless. She has in reserve her original right of action against Adam Murry, by whose wrongful act the plaintiff was deprived of the storage tickets for her share of the grain. Murry* converted the storage tickets, and thereby incurred a legal liability to plaintiff for their value. Under these circumstances, we are clear that a new trial would not aid in the accomplishment of justice.