(dissenting). This action was brought to recover on a promissory note.
*512Plaintiff herein -was engaged in the real estate business in Miller, this state. It is alleged that the First National Bank of Sioux City, Iowa, owned a farm, situated northwest of said city of Miller, consisting of six quarter sections of land, and known as the Esher farm. A price on this land was given to the real estate men of Miller, including plaintiff herein. Plaintiff entered into 9 deal with defendant in regard to said farm, and defendant agreed to take said farm if plaintiff could deliver it at $45 per acre. Plaintiff later told defendant that the owner wanted $49,000 for the farm, and defendant agreed to take said farm at this price. A contract (Exhibit A) was drawn up> by plaintiff in his office and signed by defendant, and defendant gave his check to plaintiff in the amount of $5,000 earnest money. The provisions of the contract (Exhibit A) material to this action are that the purchase price of said farm was to be $49,000, the payments to be made as follows: $5,000 in cash; $11,500 on March 1, 1920; a mortgage to be given for the balance of $32,500 due in 5 years from March 1, 1920. An item of $1,500 was separated from the payment of $11,500 and a note for such amount made out payable to plaintiff; it being understood by all of the parties concerned that this was to be plaintiff’s commission for his services. This note of $1,500 is the note now being sued- upon. A few days later plaintiff informed defendant that the owners of said farm would not approve the sale under the contract (Exhibit A), and another contract (Exhibit 2) was drawn up by one of the attorneys of Miller. Defendant, by this time, had learned that J. T. McCullen was the direct agent for the owners of said farm, and it was at the suggestion of said MbC'ullen that plaintiff had an attorney draw up the contract. The provisions of this contract (Exhibit 2) material to this case are that the purchase price was just $1,495 less '.han the purchase price of the first contract; $5,000 was to be paid down; $10,000 was to be paid March 1, 1920; and the balance of $32,495 was in the form of a mortgage, to become due March 1, 1925. Under the terms of the first contract (Exhibit A), possession of the land was to be given to defendant when full settlement was made on March 1, 1920. Under the terms of the second contract (Exhibit 2), defendant was to have full possession on March 1, 1920, but was to have the rent for the year commencing March i, 1919, and was to pay all of the taxes and as*513sessments for the year 1919, and each succeeding year during thq life of the contract. The second contract (Exhibit 2) was signed and sent to the bank at Sioux City, Iowa (owners of the land)., together with defendant’s check for $5,000, and was accepted' by said bank. Three years later plaintiff brought this action to recover on said note of $1,500. The action was tried to a jury, and a verdict was brought in for defendant upon which judgment was entered. Plaintiff made a motion for a new trial, which motion was denied, and this appeal is- taken solely from the order denying a new trial.
Plaintiff contends that the two contracts executed were part of one transaction, and that defendant is therefore liable on the $1,500 promissory note executed by him in favor of plaintiff.
Defendant contends that said note for $1,500 was executed under the terms of the first contract' (Exhibit A), and that the farm was not delivered under this' contract, and that, therefore, he is not liable on said promissory note.
The testimony of -defendant and plaintiff regarding the issues material to this action is in direct conflict. The evidence was all fairly submitted to the jury, and plaintiff did not take exception to the charge as given. The court below had' an opportunity to review the evidence on the motion for a new trial, but such motion was denied. Where the evidence is conflicting, and the motion for a ne-w trial has been denied, the verdict of the jury is conclusive upon appeal. Peters v. Kiriakedes, 131 N. W. 316, 27 S. D. 371; Barnard v. Tidrick, 152 N. W. 690, 35 S. D. 403; Mundon v. Greenameyer, 184 N. W. 257, 44 S. D. 440.
I think the order of the lower court denying a new trial should be affirmed.