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In an action upon a promissory note, given in renewal of a former note and held as collateral security by plaintiff bank, where the defense was asserted that the renewal note was expressly delivered with the agreement and understanding of both the payee and plaintiff, as holder thereof, that the note should not be effective unless a certain life insurance policy was delivered, it is held, for reasons stated in the opinion, that the trial court properly submitted to the jury the issues whether the plaintiff was a holder in due course and whether the renewal note was in fact conditionally delivered.

Action in District Court, Eddy County, Jansonius, J.

Action upon a promissory note. From a judgment in defendant Mattson's favor plaintiff has appealed.

AFFIRMED.

Opinion of the Court by Bronson, Ch. J.

William Maloney and Lemke & Weaver, Fargo, N. D. Attorneys for Plaintiff and Appellant.

Knauf & Knauf, Jamestown, N. D., Attorneys for Defendant and Respondent.

W. J. Newell, vs. William McMurray,

1. In a conversion action to recover the value of a furnace removed from a house situated upon real property which had been, prior to such removal, conveyed to the plaintiff, it is held:

(a) Parties are at liberty to make any agreement or arrangement with respect to their property as they see fit and to give to fixtures the legal character of realty and personalty at their option; and if the arrangement is such a one as would make the property personal property, as between the parties, it is personal property, and may be so treated.

(b) For reasons stated in the opinion, it is held, that there is sufficient evidence in the record to support a finding that the furnace was installed in the house under an agreement, between plaintiff's grantor and the vendor of the plant, whereby the title thereto remained in the vendor until the furnace had demonstrated its capacity to heat the house to the satisfaction of the vendee.

2. An agreement to give fixtures the legal character of personalty avails as against the purchaser of the land, with actual or constructive notice of the agreement.