Page:North Dakota Reports (vol. 2).pdf/224

 The opinion of the court was delivered by

Corliss, C. J. The defendants having obtained judgment below, the plaintiff appeals. The note sued upon was executed by defendant Roberts, and the payment thereof was guaranteed by defendants Hanson & Osgood. It was the last renewal of a note given by defendant Roberts to Hanson & Osgood for wheat sold by them to her. They desiring to turn the original note into cash had it discounted by the plaintiff, they guaranteeing the payment of it. All of the renewal notes were likewise guaranteed by them. One of the defenses was payment. It appears that in the month of August, 1886, the plaintiff held a large amount of paper on which the defendant Roberts was liable. About this time Mrs. Roberts secured a loan of $20,000 on her real estate from M. B, Erskine. The understading was that the proceeds of this Joan were to be paid to the ‘bank, and applied in extinguishment of her indebtedness to the bank so far as the money would apply. This indebtedness was somewhat in excess of $20,000. While negotiations for the loan were progressing, the husband of Mrs. Roberts, who was agent for her in these transactions, stated to the president of plaintiff that the note sued upon in this action must be paid out of this money. He also testifies that he never changed this application of the money, and that he did not know that the plaintiff had disregarded his instructions until the summons was served in this action. It is true that there is a conflict in the evidence on this question. The cashier, Mr. Lyon, states that he and Mr. Roberts went over the notes to be paid, and that he told Mr. Roberts that the plaintiff was not willing to cancel the note in question, and that Mr. Roberts consented that it should not be canceled. It would not be urged here that the verdict of the jury should be disturbed if there was any substantial denial of Mr. Lyon's statement, but it is insisted that there is no issue in this respect. Mr. Roberts, when interrogated on cross-examination about this alleged conversation, stated that he did not recollect anything of that kind; that he did not think that he and Mr. Lyon went over the notes; that he did not recollect it. The jury have found that he did not recollect such conversation. This is surely evidence from which the jury might find that such