
    54298.
    EASON et al. v. BERGER & COMPANY, INC.
    Argued September 19, 1977
    Decided October 12, 1977.
    
      Ellenberg, Wildau & Stagg, Richard D. Ellenberg, for appellants.
    
      Kaler, Karesh & Frankel, John R. Grimes, for appellee.
   Bell, Chief Judge.

This is a suit on a promissory note. The case was tried by the court. At trial the defendants admitted execution but contended that indebtedness was not then due because the note had been modified or affected by a prior written agreement between the parties. The trial court found as a fact that the note was overdue and had not been paid, and concluded that plaintiff was entitled to recover and entered a judgment for plaintiff. Held:

1. As between the immediate parties to a note, it may be shown that its terms were modified or affected by other written agreements executed as a part of the same transaction. Code § 109A-3 — 119. While evidence on this issue was offered in this case it did not demand a finding that the note was modified or affected by a prior written agreement between the parties. Therefore, the court as the trior of the facts, did not err in finding for plaintiff. The evidence otherwise authorized the findings that the note was due and unpaid and the judgment for plaintiff.

2. The motion for damages for delay is denied.

Judgment affirmed.

McMurray and Smith, JJ., concur.  