Plaintiff brings this action for an accounting from his tenant of a farm for the years 1901, 1902. The abstract contains something over 300 pages; and she appeals under § 7229, Rev. Codes 1905, whereby a trial anew is sought in this court. No public question is involved, and our duties consist principally in reading the evidence and weighing the same after the manner of a jury. No useful purpose can be served by setting forth this testimony, and we will content ourselves with announcing the result of our deliberations upon fact, and deciding the questions of law involved.
(1) The defendant contends that plaintiff is guilty of laches in bringing the action, to such an extent that he should be precluded from any recovery. The crops raised in 1901 and 1902 are in dispute, and the action was not commenced until the year 1908. It is not claimed that the statute of limitations has run, but defendant insists that during the intervening years he has lost or destroyed his books of account relating to this transaction; that the elevator books showing the receipt of the grain have been likewise lost or destroyed by the elevator company, and that his witnesses, who were mostly farm hands, have moved away from the vicinity, and he has been unable to locate them; that had the plaintiff promptly prosecuted his cause of action, the defendant would have been in better shape to have presented his defense. The delay of the plaintiff can be excused partly because of age and infirmities, and partly on account of poverty. Without setting out the testimony upon this point, we conclude that in this ease laches of the plaintiff is not sufficient to preclude a recovery, but the circumstances should all be considered in weighing the testimony. For example, the failure of the defendant to- produce his books will not be considered a circumstance against him, as it might be, had the trial occurred shortly after the threshing was done.
(2) The first item in dispute relates to the flax crop for the year 1901. The plaintiff is a married woman living with her husband in *486the city of Larimore. The couple are something over seventy years of age, and the husband transacted all of the business for the wife. He testifies that he kept books, and produced in court a ledger in which he had written down memoranda of the transactions in dispute. He testifies that he furnished flax seed for 134 acres in 1901, and examined the crop while it was growing, and estimated the yield at 22 bushels per acre; that the flax was grown upon breaking, and was clean. He further testifies that during threshing time he visited the farm, and had a conversation with defendant, who told him that he had threshed 900_ bushels with his own machine, and had broken down, and hired another machine to finish the flax; that after the flax was all threshed he went to defendant and asked him for a statement, and was told by the defendant to see one Savage, his foreman, who could tell him all about it; that he had gone to Savage, who had taken a lantern and looked at his book, and showed him thereon that the last machine had threshed 1,473 bushels, making a total of 2,373 bushels, of which he was entitled to one half, less the expense of threshing.
The defendant upon his part insists that the crop raised was much smaller, and that a settlement in full had been had for that year. Each party is corroborated by some circumstances and by some witnesses, and we are agreed that the plaintiff has, by a fair preponderance of the evidence, established his contention, and that the trial court correctly estimated the amount owing from the defendant to the plaintiff upon this cause of action, which was to the effect that there was due to the plaintiff 639-J bushels, of flax of the value of $1.30 per bushel, for the year 190.1, together with interest thereon at 7 per cent since Eeb. 1-1903.
The next item of dispute relates to hay raised upon contract during the same year, and we have reached the conclusion that the trial court is correct, which we merely announce without setting forth the evidence.
Upon the question of the 1902 crop, there is likewise a dispute, and claim of the defendant that the same has been settled in full. Upon this point we find, with the trial court, that there is due to the plaintiff upon accounting the value of 325 bushels of flax at 75 cents per bushel, and 240 bushels of wheat at 70 cents per bushel, with interest upon all of such sums at 7 per cent since February 1, 1903.
It follows that the judgment of the District Court is in all things affirmed.