Page:North Dakota Reports (vol. 3).pdf/196

 the second note was the balance due on the first, and that in fact there was no balance remaining when the second note was given, and hence it was without consideration. Appellant's theory of the case is, also, that the consideration of the second note was the balance due upon the first, but the parties differ widely as to what that balance was. Nearly all the payments on the original note were made by the delivery of elevator wheat checks, some ‘of which were delivered to Whited & Johnson, and some to the agent of Mears. The mortgage covered successive wheat crops on certain land, and, as this wheat was hauled to the elevators, wheat checks were taken, and delivered to the party holding the note. But during the time that Mears held the original note, and before the second note was given, he also held various small notes against respondent, aggregating, according to the testimony, $319.60. Appellant claims that this money arising from the sale of the wheat represented by the checks was; by agreement, to be applied to the payment of these small notes, and there is testimony to that effect. This respondent, in his testimony, denies. It is not very material. When the second note was given, these small notes were delivered to, or at least left with, respondent. With full knowledge of the fact, he has retained them, with no offer to return. Hence, as against him, it must be held, either that the small notes were paid by the wheat payments, or that they formed, pro tanto, the consideration of the second note. It would be necessary, therefore, in order to establish a total absence of consideration in the second note, to show that the payments made not only extinguished the note of November 24th, 1888, but also the smaller notes. Further, the agent of Mears testifies that at various times he let Lemke have cash, for expenses,—$25 at one time, and $5 or $10 at two or three other times; that this money was to be repaid from the proceeds of the wheat; that he simply put slips in the money drawer to represent the cash so advanced, and when the wheat was sold he replaced the money, and destroyed the slips, and no record was made of the transactions. This testimony respondent denies, and we have no means of