Page:North Dakota Reports (vol. 48).pdf/612

 tract for the sale of a half section of land in township 152 of range 80—a contract on which the plaintiff never received and never will receive cone dollar—defendant claims a commission of $1,000. He received the total cash payment of $500 with a written interest in the land contract for $500. Then he borrowed from the bank $500, and gave his note for the same, trusting that it might be paid from money received on the land contract. Now he claims that the money loaned to him was in reality a payment of commission on the worthless deal, and that there was no consideration for the note. That is in effect his answer. Yet the defendant himself testified it was agreed between him and the bank that he should take his chance of getting the second $500 commission from the land contract, inasmuch as the bank had received nothing and took the chance of receiving anything on the contract. His own testimony clearly shows that the bank is entitled to recover on the note $500 and interest. The jury found a verdict in favor of the defendant; the court very properly gave judgment against him for the amount of the uote and interest.

Now the point is made that, according to some old decisions by this court, that judgment notwithstanding the verdict was irregular, because the plaintiff did not move for judgment at the close of the testimony. That is a tweedledum and tweedledee objection. It is high time for this court to disregard errors so technical and arbitrary. The case presents only one single question: Is the judgment right; is it just; on the facts conceded and established beyond a peradventure is the plaintiff entitled to recover on the note $500 and interest? Judgment affirmed.

, C. J. (dissenting). This action was brought to recover on a promissory note in the sum of $500. The defense is that there was no consideration for the note. The action was tried to a jury, and a ver- dict returned in favor of the defendant. Subsequently to the entry of judgment by defendant in his favor plaintiff made a motion for judgment non obstante or for a new trial, and this without any motion for a directed verdict having been made at any time before the close of the entire case. The motion was granted, the judgment in favor of defendant vacated and set aside, and judgment entered in favor of plaintiff, from which and the order granting judgment non obstante this appeal is taken.