
    Edwin E. Preble v. Oscar Wicklund.
    Opinion filed May 27, 1903.
    (95 N. W. Rep. 442.)
    Work and Labor — Evidence—Payment.
    Upon a trial de novo of an action to recover wages, it is held that the judgment for plaintiff should be sustained.
    Appeal from District Court, Sargent County; W. S. Lauder, J.
    Action by Edwin E. Preble against Oscar Wicklynd. Judgment ■ for plaintiff, and defendant appeals.
    Affirmed.
    
      Rourke & Kvello, for appellant.
    
      W. S. Wickersham, for respondent.
   Young, C. J.

Plaintiff sues to recover a balance.of $69.40, which he alleges is due and unpaid for services rendered by him to the defendant as a farm laborer. The defendant answered, admitting the services and their value, but alleged that his indebtedness therefor was discharged, with plaintiff’s consent, by the satisfaction of a certain judgment for $120 which defendant’s father had against the plaintiff’s father. The trial was to the court without a jury. The trial court found against the alleged settlement, and rendered judgment for the plaintiff for the amount of his claim. The defendant appeals from the judgment, and demands a trial de novo in this court.

The only question in controversy is one of fact, and relates to the alleged settlement. The conclusion of the trial court, in our opinion, was correct. An examination of the evidence discloses that the settlement pleaded in the answer'was under consideration; further, that the defendant was desirous of paying the plaintiff through the medium of the judgment referred to. Defendant’s father was equally anxious to have the settlement made, to the end that he might realize upon the judgment, which appears to have been utterly worthless. It appears, however, that the settlement was conditional, and depended upon the willingness of plaintiff’s father to pay to plaintiff the sum. of $69.40 which the defendant owed him. This his father was unwilling and declined to do. Plaintiff’s assent to the proposed settlement was not given, and the defense of payment is not, therefore,, sustained.

Judgment affirmed.

All concur.  