makers of the note, and if he agreed to release one maker of the note in consideration of his releasing and transferring his interest in the property to the other maker, that was a sufficient consideration. The case presents only two points of dispute on which there was a direct conflict of testimony, and the jury found for defendant and the court denied a motion for a new trial.

The case was poorly tried. The testimony is far from satisfactory. However, the sum in controversy is small, and it was for the jury to do the guessing. The charge of the court was correct and the law of the case is very simple. If to secure a release from the note the plaintiff transferred his property to his partner, the consideration was just as good as if the transfer had been made to Otto Thress himself. It was an executed oral agreement (Comp. Laws, §§ 5938, 5921). The consideration was sufficient (Comp. Laws, § 5872). Judgment affirmed.

JOHN H. HEROLD, Appellant, v. ESTATE OF GEORGE HARRISON HILL et al., Respondents.

(169 N. W. 592.)

Accounting-action for➡trial court judgment of- for defendant — evidence upon which based — credits for plaintiff — disallowance of — error. Upon an action for an accounting, judgment in the trial court was had in favor of the defendant, and upon examination of all the evidence upon which such judgment is based, held, that such judgment should be modified, for the reason that the plaintiff is entitled to various credits for which he had not been credited, either by the defendant or by the trial court.

Opinion filed May 21, 1918. Rehearing denied November 18, 1918.

Appeal from a judgment of the District Court of Cass County, North Dakota, Honorable Chas. A. Pollock, Judge.

Modified.

Barnett & Richardson, for appellant.

The fact that plaintiff in giving his testimony and relating therein the facts as he understood and claimed them to exist, referred to trans

actions with the deceased, does not render such testimony wholly incompetent and inadmissible. It is not the law that plaintiff, in such cases, is an incompetent witness on every subject and in reference to everything, otherwise relevant, excepting specific transactions had with the deceased. Bank v. Hilliboe (N. D.) 114 N. W. 1085.

Evidence of the plaintiff as to any and all transactions had with deceased's agents who are still living is competent and admissible. 7 L.R.A. (N.S.) 684, note, and cases cited.

W. J. Courtney and Pollock & Pollock, for respondent.

The burden of proof is upon the plaintiff. He has not sustained the allegations of his complaint by any competent evidence. The only really competent evidence in the case refutes the allegations of the complaint. Plaintiff's testimony as to transactions had with the deceased is wholly incompetent. Code, § 7871, ¶ 2; Regan v. Jones, 14 N. D. 591; Larson v. Newman, 19 N. D. 153.

GRACE, J. Appeal from the judgment of the district court of Cass county, Charles A. Pollock, Judge.

This is an action for an accounting, brought by the plaintiff against the defendant John A. Hill, as administrator of the estate of George Harrison Hill, deceased.

It appears from the pleadings that plaintiff held a certain crop contract for the purchase of land from one Peter McLachlin, then owner of said land, which land was described as the east one half of section 27, township 143, range 53, Cass county, North Dakota. It also appears that during the year 1906, plaintiff and said George Harrison Hill entered into an agreement wherein Hill agreed to take over said premises from McLachlin, and to take over and pay the McLachlin contract, and issue to the plaintiff a new contract for deed covering the premises. It also appears that at the time of taking over such contract to such land by Hill to McLachlin, and the issuance of the new contract by Hill to plaintiff, the plaintiff was indebted to Hill on account of other indebtedness, exclusive of the contract, in the sum of $2,720.24; $647.76 of this other indebtedness was added to the contract price of such land as between Hill and the plaintiff, and of course reduced the other indebtedness to that extent. The complaint alleges that such other indebtedness was from time to time reduced by pay

ments until December 18th, 1910, when a new note was given for the unpaid balance in the sum of $1,520.40, which note the plaintiff alleges has been paid. Plaintiff further alleges that, during the years 1910, 1911, and 1912, he farmed certain school lands for said Hill, being part of section 36, township 143, range 53. Plaintiff claims, in his complaint, that it was agreed between Hill and the plaintiff that the plaintiff should receive credit upon the contract and note, of indebtedness existing and owing from plaintiff to Hill, for the reasonable value of plaintiff's services in farming and caring for said land and the crops thereof, and that by reason thereof, the plaintiff is entitled to credits to the extent of $2,200. Plaintiff also makes claim for certain threshing performed for Hill and one Linderman during the years 1911 and 1912, on a portion of the school land which Linderman had rented from Hill. In addition to this, plaintiff also produced at the trial a large number of checks which were made payable to Hill and which were cashed and the money received by Hill. There were also some receipts, executed by Hill to the plaintiff, for other money, and there are other various claims by the plaintiff against Hill, all of which are referred to in the complaint, the pleadings, or the testimony, and to which we need not more specifically refer, but which aggregate $9,000.

The answer admits the making of the contract from Hill to the plaintiff, and sets forth that the consideration of such contract was $6,720, made up of the amount owing McLachlin plus $647.76 of the other indebtedness owing from plaintiff to Hill. In addition to this, the answer claims, by reason of the other indebtedness, that plaintiff was owing Hill the further sum of $2,203.84. Defendant, by way of further defense, alleges that Hill loaned money to the plaintiff, advanced money for him and on his account, furnished him merchandise, and that from time to time settlements were had and made between said plaintiff and Hill, in which settlements plaintiff was charged with such loans and advances of money and merchandise, and credited with all payments made by him to said Hill, and the defendant claims a balance due upon such contract and all other alleged indebtedness from plaintiff to Hill in a very large amount, and the trial court awarded the defendant judgment in the sum of about $9,683.97.

It will be seen, therefore, that the parties are a great distance apart as to the actual condition of the account between them. It is perfectly

plain that there is gross error somewhere. It is perfectly plain, also, that the estate of George Harrison Hill must account to the plaintiff for all money which it is shown Hill received, and must show the application of such money either upon the land contract or upon other indebtedness due from plaintiff to Hill. The estate of George Harrison Hill must also show where any other credits which the plaintiff was entitled to were credited, that is, upon what indebtedness were such credits, if any, applied. We will refer to these matters further when we discuss some of the credits other than payments of money to which plaintiff claims to be entitled. The defendant must account for all the payments of whatever kind or character made by the plaintiff to George Harrison Hill, and all the credits to which plaintiff may show himself entitled, and if the defendant fails to account for any such payments whether by check, money, or other credits, it would seem that the plaintiff, as a matter of law, would be entitled to recover judgment for all such credits and payments for which he has not been credited, and failure of the defendant to account to the plaintiff for all such credits, moneys, and checks paid to George Harrison Hill, cannot be excused on the ground that the accounts were not kept in as good order from the standpoint of bookkeeping as they might have been, nor by the further fact that the transactions between the parties were many. It seems that a fairly good record of a great deal of the business between the parties was kept.

The first matter which is contended by the plaintiff to be an error is the amount of the McLachlin contract at the time it was taken over by Hill. At that time, the contract that had existed between McLachlin and Herold was figured up and when $647.76 of plaintiff's other indebtedness was added to the balance estimated to be due upon the contract between McLachlin and Herold, the amount was $6,720, which was the amount inserted in the new contract between Herold and Hill as the balance due upon the contract for the land in question. The plaintiff insists that the total of the balance of such contract between McLachlin and Herold, as figured by Wilson, is too great by $200. The difference between plaintiff's figures and those upon which the defendant acted probably arises from the employment of a different method in computing interest. It may be possible that the method adopted by the defendant was not the most accurate method, but it

41 N. D.-3.

must also be conceded he must have settled and paid McLachlin upon the basis of the amount found to be due McLachlin by the method of calculation used by defendant. If this assumption be true, Hill gained nothing even if the most proper method of computing interest were not used. Herold and Hill entered into the written contract wherein Herold agreed to pay the balance due upon the new contract which had been ascertained, to which had been added a certain portion of plaintiff's indebtedness to which we have above referred. There appearing to be no fraud in the matter of ascertaining the balance due upon the McLachlin contract, nor any undue advantage appearing intentionally to have been taken and Herold, having made no complaint at the time the amount thereof was ascertained, nor at any time so far as we have been able to determine until the bringing of this action, and a long period of time having elapsed since the making of the new contract, Herold must be held to be bound by the amount inserted in the new contract.

We are of the opinion that the amount stated in the new contract, less the $647.76 of other indebtedness which was added to the balance due on the McLachlin contract, must be taken to be the actual balance due upon the McLachlin contract at the time of the execution of the 'new contract, and that that balance, together with $647.76, must be conceded to be the actual consideration for the new contract at the time of its execution. The plaintiff's claim, that the balance due upon the McLachlin contract is $200 in excess of the true amount due thereon at the time the same was taken over by Hill, cannot be allowed.

At the trial, the plaintiff offered in evidence ten checks aggregating $2,598.74, which were issued by the plaintiff to G. H. Hill and they were indorsed by Hill and paid by the bank from which they were drawn, and Hill got the money for them. These checks were Exhibits 12, 13, 14, 15, 16, 23, 21, 18, 25, and 26. Plaintiff claims he received no credit for any of these checks upon Exhibit 11, the note representing the balance due under the new contract or otherwise. On examination, such note disclosed no credit for any of such checks with one exception, Exhibit 26, a check dated March 5, 1910, for $134, is credited on Exhibit 11. This, deducted from $2,598.74, the sum of such checks, leaves $2,464.74, which was not indorsed upon Exhibit