Mills

This is an appeal from an order granting the defendant’s motion for a new trial.

The action was brought to recover judgment for certain commissions alleged by the plaintiff to be due him from the defendant under certain oral contracts, by which the defendant agreed to constitute the plaintiff its agent for the sale of grain bags. The issues presented by the pleadings related to the time these contracts were entered into and their terms, but the chief question presented at the trial and upon the motion for a new trial was as to whether plaintiff had sufficiently performed his part of these agreements so as to be entitled to recover his commissions. Upon this issue the findings of the trial court were in favor of the plaintiff, but these were assailed upon the motion for a new trial as not sufficiently supported by the evidence in the case, and in granting the motion for a new trial the court evidently adopted this change of view.

We are unable to say that the court was in error in so doing. The first oral agreement, which the court found the parties to have entered into in February, 1910, and which was modified in certain other respects by the second oral agreement of April,…