Page:North Dakota Reports (vol. 48).pdf/609

 Mr. S. S. Streeper in the sum of five hundred ($500.00) dollars to be secured by his equity in the above-mentioned contract for a deed, to be paid when this equity in the contract is paid.”

“By A. E. Sevaried, Cashier.”

At the same time this instrument was delivered the defendant executed and delivered to the plaintiff the note in suit; and the cashier of the plaintiff bank delivered to the defendant a note, which he owed to the bank, in the sum of $100, and a cashier’s check for $400, which the defendant subsequently cashed. So far as there is any dispute as to the facts, it relates to what was said and done at the time these instruments were executed and delivered. With respect to this, Mr. Sevaried, the cashier of the defendant bank, testified:

“After we had made up this contract Mr. Dom made a settlement, as I remember it. It was getting toward evening. One of them sug- vested they better go, because it was getting late. They were going out to some supper that evening. They went out of the bank, and Mr. Streeper made some pretense to Mr. Dom that he had to see me about something else, and he came in and said, ‘How are going to fix up for my commission? I said, ‘Mr. Streeper, of course, you realize all the time that your proposition was this amount to be $500 to pay on the contract,’ and that was considered a small amount on a contract of $12,000, and I said, “You realize further that I can’t pay you in cash on your proposition, because it is only $500 that is paid in.’ ‘Well,’ he says, ‘I am badly in need of money, and I ought to have this money to use,’ and I thought around awhile. I have always had very agreeable terms with Mr. Streeper before in our business transactions, and I said to Mr. Streeper: “Well, we can fix it this way: I will let you have this money, and you give me your note, and this contract will stand as security to your note, and I will furthermore make that note draw the same rate uf interest as your contract is drawing, so that you will be out nothing, 10t even the interest, when Mr. Dom pays on the contract.’

“Q. In other words, you loaned him the $500? A. Yes, sir.

“Q. And at that time he gave you the note Exhibit 1? A. Yes, sir.

“ * * * A. Yes, sir.

“Q. I will show you Exhibit A, and ask you if you drew that