¶1 (concurring.)
¶2 The controversy is whether the $192 paid by Johnson was paid as interest in advance or as a commission for extending the loan. The opinion holds that the evidence made this a question for the jury.
¶3 It is conceded that at Johnson’s request Cronquist wrote the mortgage company for the terms on which they would extend the loan for another five years and received a reply stating the terms; that these terms were accepted by sending the required payment; and that thereafter the mortgage company mailed to Cronquist for execution interest coupons covering the full period of the extension and received them back properly executed by Johnson. There is no claim that any suggestion was ever made to the mortgage company to change or vary the terms stated in its letter and the extension agreement was consummated on those terms. The only evidence in the record as to the contents of this letter is the testimony of Cronquist who says that the mortgage company wrote: “We will extend this loan for a period of five years at the rate of six per cent interest and cash commission of six per cent,” and that he so informed Johnson. Although Cronquist says that he either gave the letter to Johnson or read it to him, Johnson denies ever seeing it. Cronquist’s statement that the payment of a commission was required is corroborated by all the other evidence in the case, except the statement of Johnson that Cronquist told him that the mortgage company would grant the extension if he paid a year’s interest in advance. Cronquist denies mailing any such statement.
¶4 Cronquist was Johnson’s agent. He testified that neither he nor his bank were, or ever had been, the agents of the mortgage company, and there is no other evidence on that question. The mortgage company had no knowledge of what transpired between Johnson and Cronquist and could not be affected by it. Johnson’s statement was not evidence as against the mortgage company, and it seems to me *437 that a finding that the loan was to he extended on payment of a year’s interest in advance could not he sustained.
¶5 The mortgage company was not a party to the suit; neither was Cronquist or his hank. This may explain the failure to produce the documentary evidence. As such evidence, practically conclusive as to the fact, may he produced at another trial, a new trial is proper. But on the record as it stands there should have been a directed verdict for plaintiff.