On Petition for Rehearing.
Per Curiam.Plaintiff has filed what is denominated a “motion for rehearing,” and also a supplement to such motion. Especial complaint is made of the trial court’s finding, embodied in and approved in our former opinion, to the effect that the plaintiff, in addition to the $10,000 and interest, also owes a book account of over $3,000. In the supplemental motion it is said: “Plaintiff accepts the accounting for the elevators and grain, as made in the majority opinion, which settled the Gribben-Alair debt, and left a fund of $36,548.68, one third of which belongs to the plaintiff, with $10,000 against it, but no $3,000 against plaintiff’s interest; for that is a part of the original debt of $24,000 and twice settled by agreement of the parties.”
It is true there were two settlements, but we are entirely satisfied that the book account in question has not been paid by the plaintiff. The first settlement was made on June 7, 1907, when plaintiff executed the assignment of his interest in the Gribben-Alair Grain Company, which is set out in the former opinion herein. Under the terms of the settlement then made, the plaintiff adjusted his personal indebtedness to the defendant company. He remained indebted to it in the sum of $10,000, and it was as security for this debt that he assigned his interest in the Gribben-Alair Grain Company. The existence of this $10,000 debt is one of the few things which is conceded by both parties. It should be remembered that the settlement made on June 7, 1907, had reference only to the personal indebtedness of (the plaintiff to the defendant company, and had nothing to do with the ' indebtedness of the Gribben-Alair Grain Company. In order to clarify certain matters which will hereafter be referred to, it should be mentioned that the Minnesota Grain Company shortly after June 7, 1907, sold and assigned the $10,000 claim which it held against the plaintiff to G. B. Gunderson, and he has since remained the owner. *122thereof and the holder of the security therefor. The undisputed evidence also shows that Gunderson subsequently and prior to the commencement of this action purchased the interests of Gribben and Alair, who together owned the remaining two-thirds interest in the Gribben-Alair Grain Company. (While some question was raised by the trial court during the course of the trial as to whether the action should not have been brought against Gunderson rather than against the defendant company, .the defendant did not at all insist on or raise the point, and seemed to be desirous only of having the question of the ultimate liability of either itself or Gunderson determined; and the parties treated Gunderson and the Minnesota Grain Company as one for the purposes of this action, and the only question sought to be litigated was what amount, if any, is coming to the plaintiff by reason of the security which he assigned to the Minnesota Grain Company on June 7, 1907.)
The second settlement was made on March 10, 1909. The plaintiff had commenced an action on December 31, 1908, in the district court of Eddy county for an alleged conversion of the elevators involved in this controversy. Thereafter a settlement was made. The settlement' was in writing. It was introduced in evidence upon the trial of this action, and bears date March 10, 1909. It was executed by both the parties to this action, and also by the Gribben-Alair Grain Company and G. B. Gunderson. The agreement specifically provides: “That J. W. Lahart shall fay all his indebtedness to the Gribbenr Alair Grain Go. as evidenced by notes and accounts that they may have against him.” The agreement further provides: “The Gribben-Alair Grain Company shall as speedily as possible go into liquidation and dispose of all their property, collect all outstanding bills and pay all indebtedness; that G. B. Gunderson shall pay to J. W. Eahart one third of the assets of said Gribben-Alair Grain Company, when so liquidated except $10,000, with interest from June 1, 1907, at 6 per cent, the same being the amount paid by him at that time to the Minnesota Grain Company, for account of J. W. Lahart for a one-third interest in the Gribben-Alair Grain Company.” It will be noted that the agreement specifically provides for the payment by Lahart of his indebtedness, — “as evidenced by notes and accounts,” — to the Grib-ben-Alair Grain Company. Obviously there was some reason for in*123serting tbe provision in tbe agreement. And tbe evidence adduced in tbis case shows that Labart, at tbe time tbe agreement was executed, was indebted to tbe Gribben-Alair Grain Company in tbe sum of $5,-171.50, and that $3,171.50 of tbis indebtedness was upon account. The evidence also shows that tbis account has never been paid. In fact, plaintiff admitted tbe existence of tbis account, and also that a judgment bad been obtained thereon against him in favor of tbe Grib-ben-Alair Grain Company, and that such judgment “is standing” against him. Hence, while it is true, as asserted in tbe petition for rehearing, that there were two settlements, it is equally true that tbe last settlement expressly recognized tbe existence of an account against tbe plaintiff, in favor of tbe Gribben-Alair Grain Company, which plaintiff agreed to pay. Tbe undisputed evidence, including plaintiff’s own admission, shows that tbis debt is still unpaid. While tbe reference to tbe account in tbe trial court’s statement made orally at tbe close of tbe trial (and embodied in tbe former opinion herein) may be somewhat vague, tbe findings of fact are clear and specific, and leave no room for doubt as to what account the court bad in mind. Tbe finding relating to tbis matter reads: “After tbe closing out of tbe business of tbe Gribben-Alair Grain Company, as aforesaid, tbe payment of said indebtedness to tbe defendant, including tbe claim of tbe P. B. Mann Company taken over by it, there remained on band on January 1, 1908, net assets and equities amounting to $36,548.GS. That, included in said net amount of assets and equities, however, was tbe said sum of $3,171.50 owing by tbe plaintiff Labart, which was not paid by him. That the plaintiff’s one-third interest in said net assets on January 1, 1908, would be $12,182.89 upon payment being made by him of said $3,171.50. That tbe said indebtedness of $10,000 to the defendant, with interest from June 7, 1907, to January 1, 1908, amounted to $10,388.60, which amount together with said $3,171.50 would make a total amount of $13,550.10. That tbe ■accounting prayed for in tbis action accordingly shows of tbe date of January 1, 1908, tbe sum of $12,182.89 to tbe credit of tbe plaintiff .and $13,550.10 to bis debit.”
In view of tbe facts stated, it is somewhat difficult to understand the reason for tbe assertions in tbe petition for rehearing with respect do tbe book account.
*124The plaintiff still claims that he has not received his share of the assets of the Gribben-Alair Grain Company. There is, however, no question as to what was received from the sale of the elevators. And-while the plaintiff claims that there was a great deal more grain in the elevators on June Y, 190Y, than has been accounted for, there seems to be no real basis for his claim. Certainly the evidence which ho offered falls far short of sustaining the contention made. The only evidence offered by the plaintiff upon this proposition was his own testimony and that of Alair and O’Neill. Alair was the general manager of the Gribben-Alair Grain Company, and O’Neill was the man in charge of the elevator at Sykeston. When the plaintiff was first asked by his counsel as to the grain on hand in the elevators on J une Y, 190Y, he answered: “Yes, sir; there were several thousand bushels, there must have been” A little later he stated: “We estimated there was about $35,000 worth of grain in all of the elevators.” A little later (on the same page of the transcript) he states that there was “probably $20,000 worth of grain” in the elevator at Sykeston, and $20,000 worth of grain in the other elevators. (It will be noted that there is a difference in value of $5,000, in a few moments, — and all during his direct examination.) In this connection it may be mentioned that O’Neill, who had charge of the Sykeston elevator from the fall of 1906 up to and subsequent to June Y, 190Y, when called as a witness in behalf of the plaintiff, testified that in his judgment there was only about 300 bushels of grain in the Sykeston elevator on June Yth. The only elevator in which the plaintiff testifies that the grain was weighed was in the elevator located at Heaton. In the others, he says, it was measured and figured. He admits that there was quite a number of storage tickets outstanding, and that some of the grain on hand was represented by such storage tickets, and that such grain belonged to the owners of the tickets.
When Alair (who was called as a witness by plaintiff) is asked how much grain there was in the elevators, he answers: “I could not tell just how much grain there was in them, the actual amount, no; only just an idea as Mr. Lahart made an examination and he gave it to me. He asked me if there was enough grain to pay out. I said I did not know. He asked me to go along with him and measure up the houses. We went out and measured up the houses roughly ’’ In answer to *125another question, requesting him to give bis best judgment as to tbe amount of grain on band, after giving an estimate, be says: “I can tell if I see tbe ledger.” Tbe ledger referred to was a book kept by “tbe Gribben-Alair Company at its office at New Rockford. This ledger was afterwards produced in court, and introduced in evidence by tbe defendant, and tbe expert accountant, Thompson, repeatedly referred to it in bis testimony. He (Thompson) said that tbe so-called ledger “contains a complete statement of tbe grain in tbe elevators on June 7, 1907.” This is in harmony with tbe statement of Alair that be could tell tbe amount of .grain on band if be could see this ledger. How can it be seriously contended that tbe evidence adduced by tbe plaintiff does in fact establish tbe amount of grain on band in tbe elevators on June-7, 1907?
On the other band, tbe defendant produced books of account showing tbe various receipts and expenditures. It also put upon tbe stand Gunderson, who testified as to these matters, as well as Mr. Thompson, an expert accountant of recognized ability, who went thoroughly into tbe matters in controversy. He based bis testimony as to the amount of grain on band on June 7, 1907, upon tbe books of tbe Gribben-Alair Grain Company as kept by it prior, and up to June 7, 1907. Tbe Gribben-Alair Grain Company was awarded all profits reflected by “overages.” Thompson explained tbe method used by him in determining tbe amount and value of tbe grain on band on June 7th. When asked: “When you make your calculation as I understand it, you give tbe plaintiff tbe benefit of any doubt as to overages?” be answered: “Yes, sir, in every case.” According to tbe computations made by Thompson the assets of the Gribben-Alair Company on January 1, 1908, amounted to $86,548.68. And this amount — as he explained — included tbe account of $3,171.50 against tbe plaintiff, to which reference has heretofore been made.
Alair testified as follows with respect to tbe grain shipments:
Q. Then, isn’t it a fact that all the grain that was on band, whatever amount that might have been in those seven elevators, was shipped out either to tbe P. B. Mann Company, or to tbe Minnesota Grain Company, and that tbe amount was received by tbe Gribben-Alair Company as to those sums!
*126A. Yes; we always got an account sales.
Q. You saw tlie account sales of the Gribben-Alair Grain Company shipped to or received by the Minnesota Grain Company ? For all shipments?
A. Yes, sir; all the cars shipped received account sales of th.e shipments.
It should be noticed that the Gribben-Alair Grain Company was a going concern. It was operating elevators at seven different points in the state. It had its headquarters at New Rockford. It maintained a bookkeeper and kept its books at that place, and the different buyers in the different elevators made reports to that office. According to the understanding between the parties, all grain on hand- on June 7, 1907, was shipped out, and it is undisputed that all grain had been shipped out, and also five of the elevators sold before the end of August of that year. Hence, when plaintiff entered into the settlement agreement on March 10, 1909, all moneys from the sale of grain and from the sale of the five elevators had been received. If plaintiff’s contentions in this case are correct these sums would have more than paid off all debts of the Gribben-Alair Grain Company, and plaintiff’s distributive share of the surplus would have more than paid off his entire debt. It is somewhat strange that the terms of the agreement are as set forth, if the plaintiff at that time actually believed the contentions which he now claims to be true.
Some reference has been made in this case to the fact that Gunder-son refused to permit the plaintiff or his attorney to examine the books of the Minnesota Grain Company. It is not apparent how this could affect the admissibility of the books in evidence. In this connection it may be noted, however, that Gunderson denied that he- refused to permit such examination, and claimed that he permitted Brice (La-hart’s attorney) to examine them, and even to take some of them to his office. And Lahart admits that he was informed by Brice to the effect that he had been permitted to examine the books. Lahart testified: “Mr. Brice said he had got the books, that Mr. Gunderson let him have the books. He had a man in his office go through everything. He said he acted real good and let him go through everything.”
*127Reference has also been made to the fact that Gunderson admitted that he had drawn some money out of the Gribben-Alair Grain Company’s assets. The record fully discloses what was done. Gunderson was asked to give the then condition of the Gribben-Alair Grain Company. He says: “There is on hand, $23,339.30, and Gunderson and Alair have, and it is practically, myself, same thing,- — -$14,637.28, the total assets are $37,967.68; indebtedness to the Minnesota Grain Company, $6,349.93, making the net worth $34,326.65. In addition to that, have an account against J. W. Lahart which is in the form of a judgment for $3,231.50.” On his cross-examination he admits that he has drawn out some money and charged it to his account. Just what was wrong about that is hard to understand. He owned two thirds of the assets outright and absolutely, and he had a lien for over $10,000 against the other one third. This lien exceeded the full amount of such interest, so Gunderson was in fact the owner of all the assets. In his testimony Gunderson was referring to entries made in books of account, which were offered in evidence. These are the same books upon which the expert accountant based his testimony, and the books are part of the record transmitted to this court.
Our reconsideration of this case on the petition for rehearing has merely confirmed our convictions that the judgment appealed from is right. The conclusion reached in our former decision must stand. A rehearing is denied.