
    No. 28,291.
    The Kansas Wheat Growers Association, Appellant, v. L. N. Daves, Appellee.
    
    (272 Pac. 123.)
    Opinion filed December 8, 1928.
    
      T. A. Nojtzger, George W. Cox, W. J. Masemore, Lawrence Weigand, all of Wichita, and O. G. Underwood, of Greensburg, for the appellant.
    
      Russell L. Iiazzard, of Greensburg, for the appellee.
   The opinion of the court was delivered by

Burch, J.:

The action was one by the Kansas Wheat Growers Association against a member of the association for stipulated damages for failure to deliver wheat pursuant to the member’s contract with the association. The jury returned the following special finding of fact:

“1. What number of bushels of wheat were produced by the defendant and harvested in the years 1923 and 1924 delivered outside of the association? A. 888 bu. 50 lb.”

There was no evidence to sustain the finding of the jury. Undisputed elevator-record evidence showed defendant produced and personally sold 3,256 bushels and 50 pounds of wheat, and produced 868 bushels which his wife marketed while he was in Missouri, he having been called there because of illness of his mother. Defendant’s wife claimed she owned the wheat she sold because she had some connection with its production which she described. She admitted defendant was as much interested in the proceeds as she was. Defendant, as a witness in his own behalf, failed to corroborate his wife, and did not defend on the ground he did not own part of the wheat.

The judgment of the district court is modified to include stipulated damages for the entire quantity of wheat sold outside the association. As modified, the judgment is affirmed.  