Page:North Dakota Reports (vol. 48).pdf/610

 "agreement and turned it over to Mr. Streeper? A. Yes, sir; TI did. “Q. How did you come to do that? A. It came about this way:

When I said to him, ‘I will loan you $500, and you give me your note,’ I said, ‘I will give you a specific receipt that will show that you have an equity in this contract so that when Mr. Dom pays $500 on his contract, we will not retain the $500.’

“Q. That is the way you would protect Mr. Streeper? A. Yes, sir.”’

The defendant on his direct examination testfied as follows:

“Q. Now, isn’t it a fact that you and Mr. Sevaried had that express understanding that he was selling that land with only $500 paid down ? He told you expressly that in view of the fact that there was only $500 paid, that you would have to take your commission out of the contract aS it was paid in money; didn’t he tefl you that in substance, and didn’t you agree to it in substance? A. I signed that article.

“Q. You signed that order? A. What order?

“Q. Signed this note. A. What note?

“Q. I asked you this, is it not a fact that Mr. Sevaried said to you in substance this, that, “Your man will only pay a small amount in cash; a great bulk of the price has got to be taken out in crop contract, and you must take your chance on commission, the same as we are taking chances on the land; didn’t he tell you that? A. He told me that, yes, sir.

“Q. And you agreed to it? A. Not in that way.

“Q. Did you or did you not agree to it? Didn’t you agree to accept that commission in that way? A. With the understanding it should be paid out of that crop.

“Q. Yes. A. Certainly it should be paid out of the crop.

“Q. Yes; your $500 was to be paid out of the crop to you. A. To him.

“Q. Through him, but you were to get the $500 out of the crop. A. He advanced me $500 on that note.”

The undisputed evidence shows that the purchaser, Doni abandoned the contract shortly after making it, and never produced a crop on the rand at all. It is true the evidence shows that there never was a formal cancellation by service of a notice as provided by statute for the cancellation of such contracts. But the undisputed evidence also shows that Dom notified the bank of his intention to abandon the contract.

“Of course, the fact that the contract has not been canceled does not adversely affect the defendant in this case. He still has a $500 equity