#### O. H. DUKE and NORA B. DUKE v. B. C. SCARBORO and J. M. TEMPLETON, Trustee for B. C. SCARBORO.

(Filed 9 November, 1938.)

Mortgages § 27—

Conflicting evidence on plaintiff’s contention that the mortgage note in question was paid by defendant’s retention of sums due plaintiff for services rendered and application of such sums to the note by agreement. held properly submitted to the jury and sufiBeient to sustain a verdict in plaintiff’s favor.

DEFENDANTS appealed from Gowper, Special Judge, at February Civil Term, 1938, of Wake.

No error.

Tbis is an action to remove a cloud from tbe title to land, supported in brief by tbe following evidence:

On 29 October, 1931, tbe plaintiffs executed and delivered to B. C. Scarboro a note in tbe sum of $350.00, due and payable 1 December, 1932, and executed and delivered a deed of trust on their interest in certain lands situate in Wake County, in which deed tbe defendant J. M. Templeton was trustee. Tbe plaintiff O. H. Duke was, prior to tbe execution of tbe note and for a time thereafter, employed by tbe defendant Scarboro in hauling tobacco to tbe warehouse at Oxford, North Carolina. He testifies, in substance, that tbe defendant Scarboro agreed to credit tbe amounts due tbe plaintiff for such hauling upon tbe note, and promised five or six times to cancel tbe note on account of such payments, which were sufficient, as plaintiff testifies, to pay off tbe note in full.

Tbe plaintiff testified that after various attempts to get tbe note and mortgage canceled, be was forced to bring tbis suit for tbe purpose of having tbe note and mortgage canceled and removing a cloud from tbe title to bis property.

Tbe defendant Scarboro denied that tbe plaintiff bad made him any payment on tbe paper. He contended that tbe plaintiff bad been paid for tbe hauling by tbe customers whose tobacco was hauled.

There was other evidence in support of plaintiff’s contention and evidence supporting that of tbe defendants.

Tbe following issue was submitted to tbe jury:

“Had tbe note secured by tbe deed of trust been paid, as alleged in tbe complaint?”

Tbe jury answered tbe issue in tbe affirmative, and from tbe judgment in favor of tbe plaintiffs tbe defendants appealed.

J. G. Mills and John G. Mills, Jr., for plaintiffs, appellees.

A. J. Templeton and O. M. Marshburn for defendants, appellants.

*402Per Curiam.

Since there was evidence tending to show that the defendant Scarboro had accepted the service of the plaintiff and had retained the amounts due for such service as payments upon the note, and evidence from which the jury might infer that the note was paid thereby, the issue submitted to the jury was proper, its answer conclusive against the defendants, and the judgment rendered thereupon correct. In this case we find

No error.