#### ARTHUR G. STRASSHEIM v. JOHN McGUIRE.

(164 N. W. 26.)

Promissory note — giving of — final settlement — not conclusive of — services performed — payee indebted for — offset — evidence.

1. The giving of a note is not, in itself, conclusive evidence of a final settlement between the parties; and evidence is admissible to prove that at the time of its execution and delivery the payee was indebted to the maker for services performed, and such indebtedness may be pleaded as an offset.

■Counterclaim — evidence — ample to support.

2. The record examined and *held*to contain substantial evidence in support of the counterclaim of the defendant.

Opinion filed July 13, 1917.

Action to recover ou a promissory note. Counterclaim for services Tendered.

*290Appeal from the County Court of-Ward County, Honorable *Wm. Murray,*Judge.

Judgment for defendant. Plaintiff appeals.

Affirmed.

Statement of facts by Bruce, Oh. J.

This is an action to recover on a promissory note for $126, executed by the defendant, McGuire, on September 27, 1909, to Strassbeim & Company, composed of Arthur G. Strassbeim and Arthur L. Schoeninger, and alleged to have been assigned to tbe plaintiff.

Tbe defendant admits tbe execution of tbe note, but alleges:

“That heretofore, to wit: during tbe year 1909, and in tbe months of May, June, July, August, and September, be was employed by Strassbeim & Company, mentioned in plaintiff’s complaint, as solicitor for tbe brokerage of insurance and collection of rents. That be was so employed on tbe following terms: He, tbe defendant, to receive fifteen dollars ($15) from tbe plaintiff herein, and ten dollars ($10) from tbe plaintiff’s associate, each and every week from and after May 1, 1909; and during bis employment. That in consideration thereof be was to devote bis entire time and attention to tbe soliciting of insurance and tbe collection of rents; that be was to receive a percentage on all insurance .written and rents collected, from which percentage was to be deducted tbe amount of twenty-five ($25) dollars, per week paid to him as salary, but that in all events under tbe terms of said contract be was to receive twenty-five ($25) dollars per week, whether such amount was earned in commissions or not.

“That be worked under said contract for a period of twenty-two weeks, and that there was paid him by tbe plaintiff the sum of one hundred twenty-six and no /100 ($126) dollars, and by tbe plaintiff’s associate tbe sum of two hundred twenty and no /100 ($220) dollars, which tbe latter sum was in full at tbe rate of ten dollars ($10) per week.

“That on or about September 27, 1909, tbe defendant quit said employment; and as there was pending various and divers rental and insurance contracts on which be would have been entitled to commissions and which commissions would amount to much more than bis *291regular salary, and this plaintiff requested that the defendant give him a note for the purpose of keeping their accounts straight so that the amount actually advanced could be charged up against the commissions on the books of the plaintiff; and for the further reason that the plaintiff was dissolving with his brother, who was known as the company in the copartnership of Strassbeim & Company by whom tbe employment was made. That since such time tbe plaintiff and tbe copartnership known as Strassbeim & Company have never accounted to tbe defendant for tbe amounts due bim by way of salary and commissions, and that there is still due and owing to tbe defendant from tbe plaintiff and tbe copartnership of Strassbeim & Company tbe sum of two hundred four and no/100 ($204) dollars no part of which said sum has been paid which said sum of two hundred four and no/100 ($204) dollars is due on commissions and for salary at tbe rate of fifteen dollars ($15) per week, which tbe plaintiff and copartnership of Strassbeim & Company agreed to pay to tbe defendant.”

Tbe case was tried to tbe court without a jury, and tbe trial court found “that tbe defendant was employed by tbe plaintiff and Henry E. Strassbeim, a copartnership known as Strassbeim *&*Company, as tbeir representative and solicitor, with a guaranty of ten ($10) dollars per week for bis services, and commissions on all business that be did, which commissions were to be applied, first, towards -the payment of tbe ten dollars ($10) of guaranty, and all additional and further earnings by way of commissions were to be paid to tbe defendant as extras; that tbis defendant did, pursuant to such agreement, work for tbe plaintiffs for a period of twenty-two weeks; that tbe defendant did give to tbe plaintiff tbe note mentioned in plaintiff’s complaint, but that same was given solely as a memorandum for tbe purpose of bookkeeping to show tbe amount drawn by bim under tbe guaranteed salary, and to keep a record of same as an offset against commissions which be might earn; that there is nothing due or owing to tbe plaintiff from tbe defendant by reason of tbe premises.” He therefore entered judgment dismissing tbe action, and from tbis judgment tbe appeal is taken.

*Halvor L. Ualvorson,*for appellant.

*Tolda, & Acdcer*and *Marie Oseth,*for respondent.

*292Bruce, Ch. J.

(after stating the facts as above). Tbe plaintiff contends that the facts referred to in the findings took place prior to tbe giving of the note, and that, if such facts did occur, the settlement by note constituted a final settlement between tbe parties. He also contends that tbe note imports a consideration, and that the testimony of the defendant in support of his defense tends to vary its terms.

There is, of course, no merit in tbe contention that tbe note imports a consideration, and that tbe evidence of tbe defendant tends to vary its terms. Tbe evidence tends to sbow that, if there was any assignment, tbe assignee was cognizant of tbe conditions surrounding tbe note, and tbe presumption of consideration goes no further than to establish a prima facie case. When one seeks to prove a parol agreement that services may be offset against a note, and that a note was merely given as a memorandum, be is not varying its terms. There is no pretense in the case at bar that the note did not represent moneys advanced to the defendant. The contention is merely that it was taken as a memorandum, and that the plaintiff was owing to the defendant moneys which could be offset against the note when the settlement came to be made, or if the payment of the note was sought to be enforced. Tbe question is merely whether tbe note was given in final settlement.

Although, too, we agree with counsel for appellant that the evidence is extremely unsatisfactory as to tbe guaranty of $10 a week for services, and whether tbe note was given in complete settlement of tbe transaction between tbe defendant and Strassheim & Company and tbe defendant and Iienry E. Strassheim, and on tbe contention of tbe defendant that tbe two $25 and tbe $10 payments made by him were intended to apply on a personal indebtedness to Iienry E. Strassheim, and that tbe letters written by him were in relation to this personal indebtedness and not to his account with tbe firm, we still cannot bold that there is not substantial evidence in tbe record in tbe support of tbe findings of tbe trial judge. Sucb being the case, and tbe trial judge having bad tbe opportunity of seeing tbe witness face to face, we do not feel justified in interfering with bis findings and judgment.

Tbe judgment of tbe County Court is affirmed.