had 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 referénce 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.
