
    No. 25,591.
    The Kansas Wheat Growers Association, Appellant, v. Fred Vague, Appellee.
    
    SYLLABUS BY THE COURT.
    
      Trial — Special Findings — Evidence. An examination of the record is held to show that' the special findings of the trial court against the plaintiff are sustained by the evidence and compel an affirmance of the judgment.
    Appeal from Reno district court; William G. Fairchild, judge.
    Opinion filed April 11, 1925.
    Affirmed.
    
      T. A. Nojtzger, Geo. W. Cox, W. J. Masemore, R. L. Nesmith, Benjamin F. Hegler, all of Wichita, A. C. Malloy, R. C. Davis, and Warren H. White, all of Hutchinson, for the appellant.
    
      C. M. Williams, and D. C. Martindell, both of Hutchinson, for the appellee.
   The opinion of the court was delivered by

Johnston, C. J.:

This was an action by the Kansas Wheat Growers Association against Fred Vague to recover damages for his failure to deliver wheat in accordance with the contract.

The application for membership and the execution of the contract was admitted, but defendant alleged that he was induced to sign the application upon the false representation that all the wheat growers except three living in the community had joined the association and signed agreements to deliver their wheat to the association, and also the false and fraudulent representation that the association had or would procure the control of an elevator at Elmer, a station in the neighborhood, where wheat could be delivered for the year 1922. It appears that a large number of the wheat growers in the neighborhood had not signed the application or agreement and the association had not procured the elevator at Elmer in 1922 in time to receive defendant’s wheat when he threshed that crop, and he had no place in which to store it, and defendant was compelled to sell at the time he threshed the crop. It was conceded that the wheat grown on the farm in 1923 was not delivered to the association. Upon the evidence the court found that the contract was obtained from the defendant by misrepresentation as to the number of members residing in the neighborhood, and also that misrepresentations were made in regard to furnishing a place for receiving defendant’s wheat in a local elevator. It was further found that the contract would not have been entered into except for the misrepresentations made.

As a conclusion the court determined that the plaintiff was not entitled to recover, and therefore gave judgment for defendant.

The error assigned is that the evidence does not sustain the finding relating to misrepresentation of facts. There is some conflict in the evidence, but it is clear that there is in the record evidence tending to support the findings of the trial court. The dispute was a question of fact for the determination of that court and not for this one, and following the well-known rule, the findings conclude the controversy.

The judgment is affirmed.  