(dissenting). I am unable to agree with the conclusion reached by my associates in this case. Being the only one of the judges who dissents, I feel it is not necessary to go greatly into detail. I feel fully convinced that the accounting is neither complete nor correct. The defendant undertakes to defend upon two main grounds: First, that the plaintiff had $10,000 in stock in the Gribbin-Alair Grain Company which was turned over in settlement of his debt with the Minnesota Grain Company. Then there is another theory the defendant relies upon, that the stock of the plaintiff was turned over as security, and that all the property, such as the elevators, grain, etc., had been sold and the proceeds fully accounted for to the plaintiff. The defendant’s case veers back and forth between these two defenses, ft seems to rely part of the time upon the $10,000 stock transfer as being absolute, and then again it abandons that idea and concedes taking the property as security, and claims it had fully accounted to the plaintiff for all such property of the plaintiff, which was turned over to the defendant, or which came into its possession.
Books of account, when well kept, and when demanded willingly produced in evidence, when such books contain the original entries, and proper proof is made thereof, and such books properly offered in evidence, are entitled to some weight and credit. It is shown by competent testimony in this regard that Mr. Brice, an attorney of Minneapolis, acting for Mr Lahart, sought to examine the books in connection with this accounting.
*117Mr. Labart and Mr. Brice went up to Gunderson’s office, and Mr. Xahart testifies positively that he heard Mr. Gunderson order him out of the office.
Q. Did you hear Mr. Gunderson order him out of the office ?
A. Yes, sir. Heard him tell him that he had no business looking at what he did. He wanted to look at some letters — wanted this letter. Wished to get some papers, and Mr. Gunderson told him to get out of the office and stay out.
It appears from the testimony that the letter referred to was finally brought forth, and it also appears that Brice made some examination! of the books, either by himself or through some accountant. Other testimony with regard to the books, and very pertinent, is as follows s
Q. You heard the statement of counsel that the books were always open to inspection, did you not?
A. Yes, sir.
Q. You may state what was done about examining the books, whether you examined them.
A. Must be I went down there a dozen times to call on Mr. Gunder-son at his office. He would never let me see. the books. Never let me go through them.
'Q. How long did you stay out any of the times you were down there ?
A. Two weeks sometimes.
Q. Did you ever get access to any of these books?
A. No, sir.
Q. Did you ever get access to the books?
A. No, sir.
Q. When was that?
A. In 1909, or a year later.
Q. Sometime in 1909?
A. Along in August, 1909.
Q. And about a dozen times, or ten or eleven times besides you were there to see them and never got to view the books ?
A. No, sir. Never saw them.
There is nothing in the record to show but that Mr. Xahart is a good straightforward citizen. His integrity and truthfulness is no*118where attacked. In view of such testimony it is idle for the defendant to contend that they have been perfectly willing to throw open their books to the plaintiff, or that they have been willing to enter into an accounting with him and to fully and fairly account to him for all his property received by them. After June 7, 1907, when the plaintiff had ceased to be actually associated with the Gribbin-Alair Company, he had no control over the books, and sometime after that date they were sent down to Minneapolis, and the testimony derived from the books under all the circumstances of- this case is not entitled to .be considered, the only method by which proof may be had of the matters in dispute or involved between the plaintiff and the defendant. The plaintiff positively testifies that, at the time the elevators were turned over, there was in them grain of the value of $30,000. The plaintiff and Alair went to these elevators, and Lahart measured the grain and weighed the grain up in one elevator. They went home and Lahart figured it up, Alair being present when the figuring was done and saw the figures, and Lahart said there was $30,000 worth of grain. >
Alair also testified as follows:
Q. Have you investigated, and have you information, and from the information had at that time, can you state how much wheat on your information there was in those elevators in value?
A. I could not state exact at all.
Q. What is your best judgment?
'A. I think there ought to have been close to $30,000 worth of wheat. I can tell if I see the ledger.
We have therefore these two men, each of whose testimony is unim-peached, testifying that there was $30,000 worth of grain in the elevators at the time they were turned over. After the 7th of June, La-hart was not actually connected with the operation of the elevators, but Alair was. He still continued to remain a part of the Gribbin-Alair Company, and his testimony entirely confirms that of Mr. La; hart. There is no testimony to dispute this.
Thompson, the expert, testifies as follows:
Q. It is absolutely impossible» to tell from that record what grain was actually in the warehouse?
*119A. Unless yon follow it up to the end of the season whenever they closed out.
So that it appears that the only way the expert had of telling what grain was in the elevators on June 7th would be to have the business continued from June 7th until the end of the year, and from that make a deduction of what amount of grain was on hand June 7th. We are fully convinced that his testimony with reference to what grain was in the elevatórs on June 7th falls far short in weight of that of Lahart and Alair. It cannot be disputed that the amount of grain in bin may not be accurately and exactly determined by measurement, but it can be so determined approximately. A farmer may have a bin in his granary of certain dimensions. He may not be able to tell exactly the number of bushels in said bin, but it is safe to assume that if he knows how to measure a bin he may do so, and the result of his calculation will be but a very few bushels from being, in accordance with the actual number of bushels in such bin as determined by weighing it. As we view the matter, there was $30,000 worth of grain in those elevators shown to have been there by competent testimony ■ of two witnesses, and we are candid in saying that we believe there has been no fair or full accounting thereof. In addition to this, Mr. Gun-derson shows at one place of his testimony that he received $15,000 from the Gribbin-Alair Grain Company which he never paid back.
We will set out his testimony in this regal'd as well as that relating to an additional amount of $33,339:
Q. Mr. Gunderson, do you know of drawing out from the Gribbin-Alair Grain Company on your own account $10,000 %
A. Yes, sir.
Q. Did you one time draw out the amount of $5,000 ?
A. I think so. Yes, sir. I charged it to my account.
Q. I understand. Just answer the question.
A. Yes, sir.
Q. And what was your account with the Gribbin-Alair you charged this to?
A. To my personal account.
Q. Is it shown on that book?
*120A. Yes, sir. Here. Yes, sir. Just wait half a minute. We will get this thing straight. Yes, sir, it shows here.
Q. Did you ever pay this money back?
A. No, sir.
Q. You did not ?
A. No, sir, why should I ? The company had gone out of business. The assets belong to me.
Q. This was charged in 1908 ?
A. Yes, sir.
Q. Then in speaking of the assets of the Gribbin-Alair you do not include that $15,000 with their assets?
A. Most assuredly.
Q. You have not done so in your evidence, have you?
A. Yes, sir. I-figured that as on hand; I figured that cash on hand. Most assuredly do. The assets in detail. That day also assumed the Alair account. I wish you to know Mr. Maddux settled that up.
Q. You also had $33,389 yourself?
A. Yes, sir.
Q. Now, what is this Gribbin & Alair?
A. Gunderson & Alair.
Q. What is this $14,632? That really out?
■A. Yes, sir.
Q. So, you really, owe $37,937.58 ?
A. Yes, sir.
Then thei'e is further testimony showing what the Gribbin-Alair Grain Company owed the Minnesota Grain Company, and there is testimony showing that there was a balance of $34,326.65, and the same was testified to, that that is the way it appears on the books.
Gunderson and the Minnesota Grain Company may be considered as the same interest. Gunderson was treasurer of the Minnesota Grain Company and held some other offices therein. We are fully convinced that there has not been a full accounting. There is no doubt but that Lahart is entitled to a full accounting. He is entitled to an accounting for the value of the grain in the elevators at the time they were turned over, the profits, if any, made upon the elevators thereafter until the sale thereof, and a full accounting as to the sell*121ing price and interest on all such amounts. We feel, in tbe interest’ of justice, that a new trial should be granted, and that reference should be had of all the questions in this ease, and plenty of time and opportunity had to obtain a full, true, and correct account of all the matters between the plaintiff and the defendant.