
    ATLAS LUMBER COMPANY, Respondent, v. ROSENBERGER, Appellant.
    (161 N. W. 332.)
    (File No. 3976.
    Opinion filed February 16, 1917.
    Rehearing denied March. 22, 1917.)
    1. Contracts1 — Action on Note — Defense, Payment to Payee’s Agent— Unauthorized Contract for Credits.
    ■Where defendant, employed by partners in a dray business, one of the members of which firm was plaintiff’s agent in the sale of lumber and coal, was given credit by said member of the firm in. monthly settlements for his wages, for the amount of lumber and coal sold to defendant by said agent, but the agent failed to give credit to, or to account to .plaintiff for said amount so credited, held, in a suit upon a note given by defendant to plaintiff for the amount of the lumber, etc., sales, that the account therefor remained unpaid regardless of deductions made by said agent, notwithstanding that plaintiff when the note was given agreed that the note would “go no further,” in view of defendant’s having made affidavit of the facts concerning the credits so given him; following Clow-Sehaaf Lumber Co. v. Cass, 30 S. D. 497, 138 N. W. 1120.
    3. Contracts — Suit on Note — Agreement Not to Sue, Validity— Statute.
    Under Civ. Code, Sec. 1276, declaring void a stipulation in a contract restricting a party thereto from enforcing his rights thereunder by usual legal proceedings, an agreement, either in a note, or a contemporaneous oral promise that .payee would not sue on the note, is void.
    Appeal from Circuit 'Court, Hycfc County. Hon. John E. Hughes, Judge.
    ■ Action 'by the Atlas Lumber 'Company, * a corporation, against Elmer Rosenberger to recover upon a promissory note. From a judgment for plaintiff, and1 from an order denying a new trial, defendant appeals.
    Affirmed'.
    
      M. C. Cmtmnghmru, for Appellant.
    
      O’Brien & Gage, for Respondent.
    (1) To) point one of the opinion, Appellant cited: 31 Cyc. 1605, 1585, 1405, 1378; Bank v. Kellogg, 4 S. D. 312-318.
    Respondent cited: 1 Am. & Eng. Ency. Law, p. 1028; Parker v. Leach, (Neb.) 107 N. W. 2.17; Zelenka v. Port Huron Machinery Company, (’Midi.) 123 N. W. 332,** Bridges v. Garrett, L. R. 5 C. P. 454; 31 Cyc. 1605; 2 Ency. L & P. 1224; Clow-Schaaf Lumber Company v. Kass et al, 138 N. W. 1120.
    
      (2) To point two of the opinion, Respondent -cited: 9 Cyc. 546; Civ. Code, Sec. 1276.
   WHITING, J.

Action on promissory note. Verdict directed for pl-aintiff. From judgment and order -denying- new trial, defendant appeals.

The facts, whi-ch must be taken ;as -conceded' by plaintiff on its -motion for directed verdict are: Defendant was in the employ oif L. & M., partners in a 'dray business. L., at the same time, was the -agent -o-f plaintiff. L., as such agent, from time to time sold defendant lumber and coal o-f the aggregate value of $52.30. . During the period covered by is-ucb sales, defendant made monthly settlements with the firm of D. & M. for wages due him; upon, such settlements, L. would pay him the amount due less the amount -defendant was -then oiwing plaintiff; but L. failed to give defendant credit o-n plaintiff’s bo-oks -or otherwise account for same to plaintiff. Defendant made an affidavit of the above facts- at request -of -pla-intiff. He also gave plain-tiff the note in- suit. The note was for the amount of goods purchased. Plaintiff agreed that, as long as it had the affidavit, the note would “go no further.” By its direction -oif verdict, the- trial court held that the account remained unpaid1 regardless of the 'deductions made by D. from, amounts due defendant from L. & M. Such holding is clearly right. Clow-Schaaf Lumber Co. v. Kass, 30 S. D. 497, 138 N. W. 1120.

Defendant contends that plaintiff agreed not to sue- on the note. The note itself contained no such provision. If it had contained such a provision, the provision would have 'been void. 'Section 1276, C. C. Therefore if the writing could be varied by the evidence of the oral agreement, and we should construe the term “go 00 further” to mean that the note would not he sued' on, it would avail defendant nothing.

The judgment and order appealed from are -affirmed.  