Page:North Dakota Reports (vol. 48).pdf/608

 74; Landis Mach. Co. (a corp.) v. Konantz Saddlery Co. 17 N. D. 310; Hurt v. Ford, 41 L. R. A. 823.

“A motion for judgment notwithstanding the verdict must be made before judgment for the other party, and the granting of such motion is without right and will leave the first judgment unimpaired even though it is coupled with a motion to vacate the first judgment. Ex Parte Dean Jones, 154 Ala. 265; 45 So. 152; (See 4 L. R. A. N. S., 348).

Fisk, Murphy & Nash, for respondent.

, J. This is an action on a promissory note in the sum of $500, dated October 25, 1916, payable January 1, 1918. The defense is that there was no consideration for the note. There was no motion for a directed verdict. The jury returned a verdict in favor of the defendant. Plaintiff thereafter moved in the alternative for a judgment notwithstanding the verdict or for a new trial. The trial court gave judgment notwithstanding the verdict. Judgment was entered accordingly, and the defendant has appealed from such judgment.

It appears from the evidence that the defendant was instrumental in procuring a purchaser for a tract of land belonging to the plaintiff bank. During the negotiations another tract was substituted, and it was definitely agreed that the commission to be paid to the defendant for obtaining such purchaser should be $500 and no more. In evidence of such agreement the bank executed and delivered to the defendant the following written instrument:

Velva, North Dakota, October 25, 1916.

“This certifies that Mr. S. S. Streeper of Sawyer, North Dakota, holds an equity in that certain contract for a deed between the Merchants’ State Bank of Velva, North Dakota, and Mr. Frank S. Dom and his wife covering the west half (W. %) of section eight (8) township one hundred fifty-two (152) range eighty (80), said equity being in the sum of five hundred ($500.00) dollars to be paid out of the crops to be raised the fall of 1917 on said land, providing said crops are sufficient, above interest due on the contract and taxes. If such crops are not sufficient then this equity shall be paid out of subsequent crops.

“And the Merchants’ State Bank is this day accepting a note from