Atlas Lumber Co. v. Rosenberger

WHITING, J. Action on promissory note. Verdict directed for pl-aintiff. From judgment and order -denying- new trial, defendant appeals. [1] The facts, whi-ch must be taken ;as -conceded' by plaintiff on its -motion for directed verdict are: Defendant was in the employ oif L. & M., partners in a 'dray business. L., at the same time, was the -agent -o-f plaintiff. L., as such agent, from time to time sold defendant lumber and coal o-f the aggregate value of $52.30. . During the period covered by is-ucb sales, defendant made monthly settlements with the firm of D. & M. for wages due him; upon, such settlements, L. would pay him the amount due less the amount -defendant was -then oiwing plaintiff; but L. failed to give defendant credit o-n plaintiff’s bo-oks -or otherwise account for same to plaintiff. Defendant made an affidavit of the above facts- at request -of -pla-intiff. He also gave plain-tiff the note in- suit. The note was for the amount of goods purchased. Plaintiff agreed that, as long as it had the affidavit, the note would “go no further.” By its direction -oif verdict, the- trial court held that the account remained unpaid1 regardless of the 'deductions made by D. from, amounts due defendant from L. & M. Such holding is clearly right. Clow-Schaaf Lumber Co. v. Kass, 30 S. D. 497, 138 N. W. 1120. [2] Defendant contends that plaintiff agreed not to sue- on the note. The note itself contained no such provision. If it had contained such a provision, the provision would have 'been void. 'Section 1276, C. C. Therefore if the writing could be varied by the evidence of the oral agreement, and we should construe the term “go 00 further” to mean that the note would not he sued' on, it would avail defendant nothing. The judgment and order appealed from are -affirmed.