Page:North Dakota Reports (vol. 2).pdf/250

 tiff's testimony, he swears that the elevator was not closed, because he imposed a false statement upon the agent sent there to close it. To that statement—shown by the correspondence to be absolutely false—he susequentlysubsequently [sic] swears positively. These circumstances tend to discredit him. The agent testifies that the house was closed and plaintiff discharged. All of plaintiffs subsequent acts are consistent with that theory, and cannot possibly be reconciled with the opposite theory. If plaintiff honestly believed himself still in the employment and pay of the defendant, good faith and common integrity, under the circumstances, required him to so notify it. On the contrary, he was scrupulously careful to convey no such impression. There is nosubstantial conflict in the evidence. Some stress is laid upon tho fact that the agent left the key to the elevator with plaintiff. The question was asked the general agent: “How did you come to leave him the key of the house?” He replied: “The same as wo do with other agents when we close a house.” Had the purpose of the agent been to terminate a tenancy, the leaving of the key with plaintiff would have been significant. But, where an elevator building was to stand closed for several months, it would seem a most natural, if not necessary, thing to leave the key with some one in the immediate vicinity, to be had in case of fire or any other accident to the building; and it would seem very natural, too, that the key should be left with the party who had for two seasons, as the evidence shows, acted as agent for the owner of the building. We do not deem the matter of leaving the key of any weight as bearing upon the question of plaintiff's discharge. As we are clear that this verdict has no sufficient evidence to support it, and is an injustice to defendant, we are compelled, however reluctant we may be, to direct the lower court to set the same aside, and order a new trial. Reversed." All concur.