(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 verdict 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.
*589The material facts are substantially as follows: The defendant produced a prospective purchaser of land to respondent’s cashier. Defendant was to have as his commission in case of sale, $i per acre and all received above $35 per acre. The purchaser was willing to pay $37.50 per acre. Therefore the commission on the sale was $3.50 per acre. On October 18, 1916, the plaintiff sold to one Frank S. Dom, the proposed purchaser, the west half of section 8, township 152, range 80, and drew what may be termed a preliminary unilateral contract, signed by the bank only, in which were stated the terms of sale. It seems the bank did not own the southwest quarter of section 8, and in this contract stated as follows:
“It is further stipulated that if the said Merchants’ State Bank does not secure the consent to this agreement by the owner of the southwest quarter (SWJ4) section eight (8), township one hundred fifty-two (152), range eighty (80), and no contract is executed, the sum of one hundred ($100.00) dollars received for this receipt shall be returned to the said Frank S. Dom, and in that event only shall it be returned.”
On the 24th day of October the bank entered into a formal crop contract for the sale of the land with Dom. The consideration was $12,000, to be paid by the purchaser by his assuming two mortgages against the land due January x, 1925, aggregating $6,000, and drawing 7 per cent, interest per annum, and by further paying the sum of $500 on the date of the contract; $500 on the 1st day of January, 1918; $1,000 on the 1st day of January, 1919, and $1,000 on the 1st day of January each year thereafter until balance aside from the mortgages assumed was paid. The first $500 payment was made. The defendant, however, had agreed to accept $500 in full for his commission, for the reason that the bank, not owning the southwest quarter, and not being able to purchase it at a price as cheap as it expected, it was agreed that defendant’s commission should be only $500. Defendant received the $500 due him as commission by receiving credit for a $100 note held by the bank against him, and by receiving a cashier’s check for $400. Prior to the time that this adjustment for the commission was made an arrangement was made between defendant and plaintiff whereby the former gave his note for $500 to the bank. The defendant claims he gave the note to the bank to make the transaction appear regular in the bank’s business. The plaintiff denies this, and claims it was a loan of that amount. It would seem the plaintiff did not desire to turn over *590all the cash received on the transaction to pay defendant’s commission. Defendant claims there was never to be any liability on his part for having signed the note. In connection with the giving of the note the bank gave to the defendant the following writing, which was duly-signed by its cashier:
“Merchants’ State Bank, Velva, North Dakota.
“Exhibit A — L. M. D. October 25, 1916.
“This certifies that Mr. S. S. Streeper, of Sawyer, North Dakota, holds an equity in that certain contract for a deed between the Merchants’ State Bank of Velva, North Dakota, and Mr. Frank S. Dom and his wife covering the west half (W. yí) of section eight (8), township one hundred fifty-two (152), range eighty (80), said equity being in the sum of five hundred ($500.00) dollars, to be paid out of the crops to be raised the fall of 19x7 on said land, providing said crops are sufficient, above interest due on the contract and taxes. If such crops are not sufficient then this equity shall be paid out of subsequent crops.
“And the Merchants’ State Bank is this day accepting a note from 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.
“Merchants’ State Bank,
“By A. E. Sevaried, Cashier.”
Aside from the mortgages assumed at the time the contract was made, plaintiff took a promissory note from the purchaser for the remainder of the respective payments. The purchaser never made any furthei payment on the contract, and never farmed the land, except during 1917, and the crops that year were lost by hail. The bank still holds his note, and has never legally canceled the contract.
There would seem to be no doubt that the defendant had earned his commission, for the plaintiff entered into a valid contract for the sale of the land with the defendant’s prospective purchaser, and that such contract had ever since remained in full force and effect so famas this record shows. The purchaser took possession of the land, and *591bad executed his notes for the balance of the purchase price after assuming the mortgages as above stated. There seems to be no real controversy in this case relative to the commission. It seems to be conceded that it was earned.
The first serious question is whether defendant incurred personal liability by signing and delivering to plaintiff the $500 note. In view of the terms of the agreement with reference thereto given him by the bank, we are of the opinion he was not personally liable, and this by reason of the provision in the agreement to the effect that the note was “to be paid when this equity in the contract is paid.” It would seem to follow that if his equity in the contract was never paid, he would never be under any liability to pay the note. Dom has never made any further payments on the contract than those above mentioned, and the evidence fairly shows that he has abandoned it. In these conditions we are of the opinion there was no liability on the note.
The second serious question here presented is: Did the court err in granting plaintiff’s motion .for judgment non obstante where there was no motion for a directed verdict at the close of the testimony? It has been in substance held by this court that a motion for judgment non obstante is not proper, where no motion for a directed verdict was made at the close of the testimony or at the close of the testimony of either party as the case may be. Johns v. Ruff, 12 N. D. 74, 95 N. W. 440; Landis Co. v. Konantz Co., 17 N. D. 310, 116 N. W. 333.
We think there was sufficient evidence to sustain the verdict, and that the court erred in granting plaintiff’s motion for judgment non obstante. We think it unnecessary to discuss plaintiff’s point that the appeal from the order was too late. The judgment appealed from should be reversed, and the case remanded, and the trial court directed to reinstate the judgment in favor of plaintiff.