Dickinson, J.
The defendants, being indebted to the plaintiff, executed to him their promissory note for the payment of a specified sum of money on or before a designated date, and secured the same by two chattel mortgages. In this action the plaintiff seeks to recover the mortgaged property on the ground of default in respect to payment. The defenses of payment and usury were interposed. The jury returned a general verdict for the defendants. Unless there was prejudicial error in the rulings of the court, the verdict should be allowed to end the controversy, for, as we consider, the evidence was sufficient to support it. The case does not show a payment of the note, unless the value of certain farm produce and some other items are to be applied in payment. The mere fact of the delivery of chattels or the performance of services by the debtor, and acceptance by the creditor, would not constitute a payment of the note, but would be merely matter of set-off or counterclaim; for the note was payable in money, and the law could not treat such matters of set-off as in themselves constituting a payment, the contract of the parties being opposed to this. Nor could the legal effect of the written obligation be varied by proof of a contemporaneous oral agreement that the note should be discharged in any other manner than by the payment of money according to its terms. The plaintiff contends that these legal propositions were disregarded by the court in overruling objections to certain testimony bearing upon the question whether the matters to which we have referred were applicable in payment of the note. Evidence was received tending to show an agreement that these items should be applied on this note, and, if such was the fact, it would go to support the plea of payment.
Most of the evidence relating to the agreement was received without objection, but one exception is noted which may be treated as being sufficient to present the question whether testimony should *543have been received showing such an oral- agreement contemporaneous with the making of the note. It was certainly not admissible for the purpose of varying the legal effect of the note itself; and, if such an agreement was made, it was of no legal effect, of itself. The plaintiff was still at liberty to refuse to receive partial payments, or to accept anything else than money, in satisfaction of the obligation expressed in the note. But the fact is that after the giving of the note the plaintiff did accept the things here referred to, and it became important to know what the intention of the parties was at the time when such things were delivered by the debtors and accepted by the creditor. They might certainly have then agreed orally that these things should apply in payment' of the note. We are of the opinion that, as bearing upon and explaining these subsequent transactions, proof was admissible to show an agreement by the debtor, even contemporaneous with the making of the note, to apply on it whatever should be received from the debtors. If, without any prior agreement, the debtors had brought farm produce to the creditor, and offered it to him upon the express condition or with the direction that it should be applied on this note, and he had received it without dissenting from the condition, he would be deemed to have accepted the condition, and would be bound by it. A previous agreement to so receive- and apply whatever might be delivered, followed by a delivery and acceptance without any further special agreement, would have a similar effect. It might be deemed that the property had been delivered and accepted pursuant to the former agreement, and, if such were the case, the payee would be bound to make the application in accordance with the agreement. A part of the consideration for the note was the price of a horse sold by the plaintiff to the defendants, and, as the case goes to show, with a warranty of soundness, for the breach of which the defendants seek, by way of recoupment, to reduce the amount of the note. The answer sufficiently sets forth this matter of defense. It was decided in Massachusetts Loan & Trust Co. v. Welch, 47 Minn. 183, 49 N. W. Rep. 740, that the purchaser’s remedy may be enforced in this way. The plaintiff’s assignments of error in respect to this matter are based upon the claim that the testimony showed that the purchaser *544did not rely upon the ' seller’s representations. But there was sufficient evidence directly to the contrary to make the case one for the jury.
Order affirmed.
(Opinion published 51 N. W. Rep. 604.)