Betts

This is an action which partakes of the nature of a demand for an accounting, wherein plaintiff asks to have a certain note given by him to defendant canceled, and also seeks to recover a balance alleged to be due him from defendant. Judgment went for plaintiff from which, and an order denying his motion for a new trial, defendant appeals.

The material facts, as appear from findings made-by the court, are as follows: Plaintiff and defendant were joint owners of a four-fifths interest in a growing crop of grain. On May 27,1914, plaintiff bought defendant’s interest therein, giving in payment for the purchase price of two thousand five hundred dollars his promissory note secured by a mortgage on the growing crop. On the back of the note was indorsed an agreement executed at the time by defendant to the effect that the payee thereof should look for payment solely and alone to the proceeds of the sale of the crop “after any and all harvesting expenses in the harvesting of said crop have been fully paid out of the proceeds realized from the sale of said crops.” The crops were harvested and sold for the sum of $5,770.90, of which sum defendant received $3,772.95, out of which he paid…