¶1ON PETITION FOR REHEARING
¶3Appellant’s petition for rehearing takes exception to a portion of the opinion previously rendered, which stated:
“There was a serious conflict in testimony as to the number of tons of hay produced, which controversy involved the formula or method used to compute the tonnage, and there was other conflict in testimony as to the market value. Both these matters required a determination of fact.”
¶4It is claimed this was erroneous because—
“(a) There is no conflict in the evidence as to the number of tons of hay produced. The only evidence in that regard was that of plaintiff Temple’s testimony as to the measurements of the stacks.
“ (b) The only controversy in regard to the number of tons of hay was the application of the proper rule for determining the weight of the stacks which is essentially a question of law not fact.”
¶5Perhaps counsel overlooked the defendant’s testimony wherein he said in substance that when the hay was measured (by Temple) “it was given a long tape” ; that the stacker used was one for which 15 tons would be a large stack; that Temple’s measurements would make stacks averaging 18% tons which was “far in excess by two or three tons per stack” of the stacks previously made with the same stacker, and that he could not see how it was possible to “wad eighteen and two-thirds tons into stacks with that size stacker.”
¶6Although this disputed the Temple testimony, we properly assumed that the court accepted the testi*187mony most favorable to the plaintiff, and so stated in the original opinion. This evidence showed the measurements to be as follows:
South No. 1 rtf xq có 03 to 03
North No. 2 lO xq 03 xq to 03
Lone No. 3„. ^ . co 03 O 03
East No. 4-rtf xq 03* 03 xq xo 03
South No. 5 CO xq oo rH xq rH 03
North No. 6 rtf xq co 03 xq co 03
¶7However, as counsel now points out, to accept the plaintiffs’ measurements does not completely dispose of the question as to how much hay was produced, for there was still to be determined whether or not the proper formula was adopted by the court to compute the tonnage. The plaintiffs admitted there was no special agreement to use any particular method to calculate the weight, and the hay was shown to be clean timothy and clover and was measured shortly after it had been in stack 30 days, so the governing provision of our statutes applicable in this case is as follows:
Section 39-1011, Wyoming Compiled Statutes, 194.5.
“* … Unless otherwise agreed to between the contracting parties, the following shall constitute the legal measurement for hay in stack in the state of Wyoming: … Four hundred and fifty (450) cubic feet shall constitute a ton of clean timothy and clover, after the same shall have been in the stack thirty (30) days, and up to one (1) year. For making measurements of hay in stack, the following is hereby made the legal method of measurement, to-wit: The width and length of the stack shall be measured, and the distance from the ground against one side of the stack to the ground against the other side of the stack, directly over and opposite, shall be taken in linear feet and inches, and then the width shall be subtracted from the measurement over the stack, as above indicated, the result divided by two (2), and the result so obtained multiplied by the width, and the result thus obtained multi*188plied by the length, which will give the number of cubic feet contained in the stack, and the tonnage shall thereupon be determined by dividing the total number of cubic feet by the number of cubic feet allowed under the provisions of this section for a ton.”
¶8Applying this statutory formula to the measurements given above gives us 93.156 tons of hay, which at $20 per ton — which we must again assume the court found to be the cost or value of the hay — made it worth $1,863.12 Deducting from this amount the $1,368 received by plaintiff from the sale of the hay, a balance remains of $495.12, which is the amount for which, under the law and the evidence, judgment should have been given, instead of the $752 awarded by the court.
¶9Having arrived at the above conclusion, it is unnecss-sary that the rehearing be granted, and the same is, therefore, denied.
¶10Because of what has been said, if within thirty days after this decision is handed down, the plaintiffs will file in this court a consent to accept judgment as of June 9, 1952 for the sum of $495.12 and costs, which is to say, for 93.156 tons of hay at $20 per ton, less $1,368 already received from the sale of the hay, being a reduction of $256.88 from the original judgment of $752, then the judgment herein as so modified will be affirmed. If such a consent is not filed, the judgment as rendered by the court below must be reversed and remanded for a new trial. An order to the foregoing effect will be entered.
¶11Denied.