Curtin

Appeals from judgment in favor of defendant and order denying plaintiff’s motion for a new trial.

Plaintiff sought to recover for eleven thousand five hundred and nineteen grain bags, being a portion of fourteen thousand five hundred alleged to have been delivered by Moore, Ferguson & Co., the assignors of plaintiff, to defendant, to be filled with grain and shipped to Moore, Ferguson & Co., or accounted for, and if not accounted for to be paid for at seven cents each. It is 'alleged that eleven thousand five hundred and nineteen of the fourteen thousand five hundred bags were never accounted for.

In a separate count plaintiff also sought to recover $34.50 for money had and received by defendant to the use of said Moore, Ferguson & Co.

The court found that defendant had duly accounted for all of said fourteen thousand five hundred bags, and also that defendant did not have or receive to the use of Moore, Ferguson & Co. the sum of $34.50 or any other sum of money.

Appellant in his brief attacks these findings as not supported by the evidence.

The case has been before the supreme court upon two former appeals.

Upon the first appeal judgment in favor of plaintiff and the order…