Lewis, J.
Respondent was in the employ of appellant from August to November 15, 1902, as agent in charge of its elevator at Barry, Minnesota. It was his duty to buy grain from the farmers, store it in the elevator, and ship it out in car lots, according to the order of apr pellant- The action is to recover money paid on misrepresentation of appellant. Respondent was compelled to resign his position November 15 and go to North Dakota, for the purpose of living on the homestead upon which he had previously filed, and after reaching Dakota, a point over four hundred' miles from Minneapolis, he was [107]*107informed by appellant that be was indebted to tbe company in tbe sum of $650.04, for shortage on account of tbe difference in amount of grain taken in at tbe elevator and tbe amount received at tbe terminal points; that sucb representations were false, and made for tbe purpose of inducing respondent to pay tbe amount claimed at a time when be was unable to examine and prove tbe facts, but that, relying on sucb representations, be paid tbe money, with tbe intention of subsequently ascertaining tbe facts. Respondent was under bond to a surety company for his faithful conduct as an agent, and for the purpose of protecting bis reputation from being discredited by the bonding company be made tbe settlement, subject to bis right to a subsequent examination of tbe books and records.
Tbe complaint charged that tbe scales upon which tbe grain was weighed when received in tbe elevator were imperfect, and for that reason there was an apparent shortage, when in fact there was none. Tbe jury returned a verdict of $650.04, tbe total amount of shortage claimed by appellant and paid by respondent, whereupon, on motion for a new trial by appellant, tbe court reduced tbe verdict, first, to tbe sum of $253.30, and later modified that order, and reduced it to $516.18, for which amount judgment was entered, and appeal was taken. • .
Tbe essential issues may be disposed of as follows: (1) What was tbe contract between tbe parties? (2) What, if any, shortage was established by tbe evidence? (3) Was there any evidence reasonably tending to support tbe claim that appellant induced respondent to make settlement and pay tbe amount of $650.04 by falsely representing to him that tbe grain shipped was short in that amount ? (4) Did tbe court err in granting a new trial, unless respondent would consent to a reduction of tbe verdict to $516.18 ?
It is claimed by appellant that tbe contract was that respondent should be charged with tbe net amount of tbe grain received at the terminal points, and not tbe gross weights; that respondent was responsible for tbe difference in dockage between tbe receiving and delivering points, and was to stand tbe loss.- Respondent claimed that be was employed as agent of appellant on a salary, and that bis [108]*108responsibility ended after using his best judgment in inspecting the grain received, and that appellant assumed the loss, if any, on account of difference in dockage.' There is no ground for argument on this question. The correspondence between the parties with reference to the method of dockage fails to support appellant in this position, and the surety bond recognized gross weights as the proper basis for estimating shortage. Besides, such a contract as appellant insists on would be so manifestly harsh and unjust that it would require clear evidence to show that respondent had subjected himself to such terms.
2. According to appellant’s letter of December 20, respondent was charged with a shortage of 669 bushels of wheat at 63 cents per bushel, and 258.4 bushels of flax at $1.02 per bushel, and given credit for 37 bushels and 12 pounds of barley at 39 cents per bushel, and 83 bushels and 28 pounds of oats at 24 cents per bushel, making a total of $650.04. At the trial the evidence showed that there was at least a total shortage of 478 bushels and 50 pounds of wheat, and an overage of barley of 135 bushels and 22 pounds, and of oats 72 bushels and 9 pounds, and, further, that there was an overage of flax of 247 bushels and 38 pounds, instead of being a shortage of 258 bushels, as claimed by appellant. There are some differences in the amount claimed by the parties as to overages on oats and barley, and the amount of shortage on wheat. The real controversy was with reference to the flax. According to the gross weights, there was an overage of at least 247 bushels and 38 pounds of flax, which entitled respondent to a credit of $252.44. Therefore, while there was a shortage in wheat, there was no shortage in the entire account.
3. The court properly instructed the jury that, if they should find that appellant made the claim of shortage in good faith, in an honest interpretation of the contract, there could be no fraud, and respondent could not recover. This leads to an examination of the evidence as to what were the facts necessarily within the knowledge of appellant at the time of making the demand for payment of the flax. It appears that respondent kept no books at the elevator, except a stub book, upon which was noted the amount of the grain [109]*109received and the name of the party to whom tickets were issued and a report of these was made to the head office at Minneapolis. Respondent handled no cash and paid for no grain. The tickets were presented at the bank or at a store in Barry for payment. All of the books and records showing the amount of grain received at the terminal points, and the amount of the dockage made by the state weighmaster, were in possession of appellant at its office in Minneapolis. There was no ground, for claiming respondent was indebted for the flax. No explanation was given, unless it was the difference in dockage. The demand was without excuse, and considering the situation in which respondent was placed, and his inability to make an examination at that time, we think it fairly a question for the jury to determine whether the demand was not made with the intention of forcing respondent to pay a claim which appellant knew was without legal basis. Respondent’s payment of the demand was consistent with a belief that the shortage claimed was the difference in the gross weights between the shipping and the terminal points; and, not being in possession of all the facts, he had the right to assume that the amount demanded was correct. This was not a voluntary payment. A payment induced by the fraud of the payee may be recovered. Schaller v. Borger, 47 Minn. 357, 50 N. W. 247.
4. The court instructed the jury as follows: “Now, gentlemen of the jury, if you find as a matter of fact, under the evidence, that there was an actual shortage as claimed by the defendant, and that the plaintiff paid over the money for the purpose of settling that and paying it, and squaring the matter up and adjusting the claim then presented to him and made by the defendant, * * * plaintiff could not recover here; and in fact the plaintiff does not claim, and no claim could be made on behalf of the plaintiff, that if there was a legitimate and actual shortage, and he paid it, that he could recover back any part of it, either the $650.04, or any part of it.” Later on the court instructed as follows: “If the money was obtained by false and fraudulent representations made by the defendant to the plaintiff, and plaintiff relied upon them to his damage, the plaintiff is entitled in this action to recover back whatever money [110]
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Lewis, J.
Respondent was in the employ of appellant from August to November 15, 1902, as agent in charge of its elevator at Barry, Minnesota. It was his duty to buy grain from the farmers, store it in the elevator, and ship it out in car lots, according to the order of apr pellant- The action is to recover money paid on misrepresentation of appellant. Respondent was compelled to resign his position November 15 and go to North Dakota, for the purpose of living on the homestead upon which he had previously filed, and after reaching Dakota, a point over four hundred' miles from Minneapolis, he was [107]*107informed by appellant that be was indebted to tbe company in tbe sum of $650.04, for shortage on account of tbe difference in amount of grain taken in at tbe elevator and tbe amount received at tbe terminal points; that sucb representations were false, and made for tbe purpose of inducing respondent to pay tbe amount claimed at a time when be was unable to examine and prove tbe facts, but that, relying on sucb representations, be paid tbe money, with tbe intention of subsequently ascertaining tbe facts. Respondent was under bond to a surety company for his faithful conduct as an agent, and for the purpose of protecting bis reputation from being discredited by the bonding company be made tbe settlement, subject to bis right to a subsequent examination of tbe books and records.
Tbe complaint charged that tbe scales upon which tbe grain was weighed when received in tbe elevator were imperfect, and for that reason there was an apparent shortage, when in fact there was none. Tbe jury returned a verdict of $650.04, tbe total amount of shortage claimed by appellant and paid by respondent, whereupon, on motion for a new trial by appellant, tbe court reduced tbe verdict, first, to tbe sum of $253.30, and later modified that order, and reduced it to $516.18, for which amount judgment was entered, and appeal was taken. • .
Tbe essential issues may be disposed of as follows: (1) What was tbe contract between tbe parties? (2) What, if any, shortage was established by tbe evidence? (3) Was there any evidence reasonably tending to support tbe claim that appellant induced respondent to make settlement and pay tbe amount of $650.04 by falsely representing to him that tbe grain shipped was short in that amount ? (4) Did tbe court err in granting a new trial, unless respondent would consent to a reduction of tbe verdict to $516.18 ?
It is claimed by appellant that tbe contract was that respondent should be charged with tbe net amount of tbe grain received at the terminal points, and not tbe gross weights; that respondent was responsible for tbe difference in dockage between tbe receiving and delivering points, and was to stand tbe loss.- Respondent claimed that be was employed as agent of appellant on a salary, and that bis [108]*108responsibility ended after using his best judgment in inspecting the grain received, and that appellant assumed the loss, if any, on account of difference in dockage.' There is no ground for argument on this question. The correspondence between the parties with reference to the method of dockage fails to support appellant in this position, and the surety bond recognized gross weights as the proper basis for estimating shortage. Besides, such a contract as appellant insists on would be so manifestly harsh and unjust that it would require clear evidence to show that respondent had subjected himself to such terms.
2. According to appellant’s letter of December 20, respondent was charged with a shortage of 669 bushels of wheat at 63 cents per bushel, and 258.4 bushels of flax at $1.02 per bushel, and given credit for 37 bushels and 12 pounds of barley at 39 cents per bushel, and 83 bushels and 28 pounds of oats at 24 cents per bushel, making a total of $650.04. At the trial the evidence showed that there was at least a total shortage of 478 bushels and 50 pounds of wheat, and an overage of barley of 135 bushels and 22 pounds, and of oats 72 bushels and 9 pounds, and, further, that there was an overage of flax of 247 bushels and 38 pounds, instead of being a shortage of 258 bushels, as claimed by appellant. There are some differences in the amount claimed by the parties as to overages on oats and barley, and the amount of shortage on wheat. The real controversy was with reference to the flax. According to the gross weights, there was an overage of at least 247 bushels and 38 pounds of flax, which entitled respondent to a credit of $252.44. Therefore, while there was a shortage in wheat, there was no shortage in the entire account.
3. The court properly instructed the jury that, if they should find that appellant made the claim of shortage in good faith, in an honest interpretation of the contract, there could be no fraud, and respondent could not recover. This leads to an examination of the evidence as to what were the facts necessarily within the knowledge of appellant at the time of making the demand for payment of the flax. It appears that respondent kept no books at the elevator, except a stub book, upon which was noted the amount of the grain [109]*109received and the name of the party to whom tickets were issued and a report of these was made to the head office at Minneapolis. Respondent handled no cash and paid for no grain. The tickets were presented at the bank or at a store in Barry for payment. All of the books and records showing the amount of grain received at the terminal points, and the amount of the dockage made by the state weighmaster, were in possession of appellant at its office in Minneapolis. There was no ground, for claiming respondent was indebted for the flax. No explanation was given, unless it was the difference in dockage. The demand was without excuse, and considering the situation in which respondent was placed, and his inability to make an examination at that time, we think it fairly a question for the jury to determine whether the demand was not made with the intention of forcing respondent to pay a claim which appellant knew was without legal basis. Respondent’s payment of the demand was consistent with a belief that the shortage claimed was the difference in the gross weights between the shipping and the terminal points; and, not being in possession of all the facts, he had the right to assume that the amount demanded was correct. This was not a voluntary payment. A payment induced by the fraud of the payee may be recovered. Schaller v. Borger, 47 Minn. 357, 50 N. W. 247.
4. The court instructed the jury as follows: “Now, gentlemen of the jury, if you find as a matter of fact, under the evidence, that there was an actual shortage as claimed by the defendant, and that the plaintiff paid over the money for the purpose of settling that and paying it, and squaring the matter up and adjusting the claim then presented to him and made by the defendant, * * * plaintiff could not recover here; and in fact the plaintiff does not claim, and no claim could be made on behalf of the plaintiff, that if there was a legitimate and actual shortage, and he paid it, that he could recover back any part of it, either the $650.04, or any part of it.” Later on the court instructed as follows: “If the money was obtained by false and fraudulent representations made by the defendant to the plaintiff, and plaintiff relied upon them to his damage, the plaintiff is entitled in this action to recover back whatever money [110]*110he paid to defendant that defendant was not properly entitled to under its contract and agreement with this plaintiff.” And again: “If you find that issue in favor of plaintiff, then you would return a verdict in favor of the plaintiff for such sum or such part of the $650.04 as you find that he was improperly led to part with at the time of the settlement by reason of the false and fraudulent representations made. In any event, he could not recover here anything, in excess of $650.04, and he cannot recover here anything, except he satisfies you by a fair preponderance of the evidence that he was led and induced to part with the money paid over by reason of the improper and unlawful practices of the defendant.”
If there was a dispute about the amount of shortage, and respondent paid the sum of $650.04 voluntarily, for the purpose of settling the dispute, he could not recover, although he may have paid for more than the actual shortage. But it does not necessarily follow that he cannot recover, simply because he was owing some part of the amount which he paid. If he was induced to part with $516.18 by reason of appellant’s false representations as to the flax, then he was not estopped from recovering that amount, simply because he voluntarily paid what was due for shortage on wheat. No exceptions were taken to the charge, and although in the first part quoted the court stated that respondent could not recover any part of the $650.-04, if there was any shortage, it was followed by the instruction that respondent could recover any part which he paid by reason of fraudulent representations. A finding by the jury that there was no shortage at all does not argue that they did not find that there was fraud as to the flax. Under the evidence and the instructions, the-jury might have returned a verdict for $516.18, and the result is the same as though the court had instructed the jury that respondent could not recover any of the amount paid for actual shortage. We discover no error in the reduction of the verdict, and are of opinion that the evidence sustains the verdict as reduced.
Affirmed.