
    JOSEPH CHEZICK v. MINNEAPOLIS & NORTHERN ELEVATOR COMPANY. 
    
    November 24, 1896.
    Nos. 10,393 — (111).
    Trial — Submission to Court — Stipulation.
    At the close of the evidence offered by plaintiff, each party moved that the jury be instructed to return a verdict in his favor. ■ Without waiting for a decision of the motions, the following proceedings and agreement took place: “The jury are excused from the case, and it is agreed that it be submitted to the court for determination.” Held, this was not a submission of the motions, but of the case, to the court, instead of the jury,- for trial on the merits.
    Findings Sustained.
    Evidence held to sustain the findings and order for judgment.
    Appeal by plaintiff from an order of the district court for Wilkin county, C. L. Brown, J., denying a motion for a new trial.
    Affirmed.
    
      Lyman J3. Luerdell, for appellant.
    
      Mason do Hilton, for respondent.'
    
      
       Reported in 68 N. W. 1093.
    
   CANTY, J.

This action is brought for the conversion of wheat. At the close of the trial before a jury, each party moved that a verdict be directed in his favor. Neither motion was decided, but the settled case states that the following proceedings then took place: “The jury are excused from the case, and it is agreed that it be submitted to the court for determination.” Thereupon the judge made findings of fact and conclusions of law, and ordered judgment for defendant. From an order denying a new trial, plaintiff appeals.

1. We cannot bold, as contended by appellant, that tbe case was, by tbe stipulation, merely submitted to tbe court to decide tbe motions to dismiss; but, on tbe record, we are of tbe opinion that tbe case was submitted to tbe court, instead of the jury, for trial on tbe merits.

2. It is further contended by appellant that tbe evidence required a binding and judgment for plaintiff. We cannot so bold.

Tbe plaintiff claims under a chattel mortgage made by one Schultz on all tbe crop of wheat to be grown on tbe northeast quarter of a certain section of land during tbe year 1891. Defendant offered no -evidence on the trial, but all tbe evidence offered by plaintiff to prove that Schultz ever owned or ever was in possession of tbe land in question, or ever cultivated it, or ever was in possession of any wheat grown on this land, was so slight, indefinite, and meager, that in our opinion tbe court was justified in finding, as it did, that the allegations ■of plaintiff’s complaint are not true. We will not attempt to recite this evidence, which was devoted almost wholly to proving what became of tbe wheat grown on this land, and scarcely an iota of it to ■proving who raised or owned tbe wheat.

Order affirmed.  