Pear has not sued on the renewal, but rather seeks to collect the original debt. A renewal note is not itself payment but rather extends the time of payment of the former indebtedness unless the parties specifically agree that the original debt is to be extinguished. Karzen v. Heitzmann, 86 N.W.2d 514, 516 (N.D. 1957). We presume that a new note does not discharge the antecedent debt. C.A. Finch Lumber Co. v. Weishaar, 55 N.D. 695, 215 N.W. 155, 156 (1927); see also Butler v. Roberts, 437 N.W.2d 839, 840 (N.D. 1989); Dakota Northwestern Bank Nat'l Assn. v. Schollmeyer, 311 N.W.2d 164 (N.D. 1981). Absent a clear intention to the contrary, an acknowledgment of a continuing debt generally renews not only liability for the principal debt, but also the liability for unpaid interest. 51 Am. Jur.2d Limitation of Actions § 322 (1970); see also Kadrmas, Lee Jackson, P.C. v. Bolken, 508 N.W.2d 341, 346 (N.D. 1993) (acknowledgments by partial payments on a debt "toll the statute of limitations for the entire debt").
Nevertheless, it is well settled in this State that the mutual rights and obligations of the parties to a written contract for the purchase and sale of real estate may be waived, and the contract annulled and extinguished, by oral agreement. Raasch v. Goulet, 57 N.D. 674, 223 N.W. 808 (1929), overruled on other grounds by Ziebarth v. Kalenze, 238 N.W.2d 261 (N.D. 1976); C.A. Finch Lumber Co. v. Weishaar, 55 N.D. 695, 215 N.W. 155 (1927); Harrington v. Eggen, 51 N.D. 87, 199 N.W. 447 (1924); Ottow v. Friese, 20 N.D. 86, 126 N.W. 503 (1910); Hougen v. Skjervheim, 13 N.D. 616, 102 N.W. 311 (1905); Wadge v. Kittleson, 12 N.D. 452, 97 N.W. 856 (1903); Mahon v. Leech, 11 N.D. 181, 90 N.W. 807 (1902). The rationale underlying these decisions is that there is no reconveyance when the contract is annulled.
Presumptively then it was the intention of the parties that they should not be considered as paid and discharged. See Wirtz v. Wolter, 32 N.D. 364, 155 N.W. 1092; C.A. Finch Lumber Co. v. Weishaar, 55 N.D. 695, 215 N.W. 155; Weiser v. Ridgeway, 56 N.D. 21, 215 N.W. 870; 8 C.J. 569, et seq. However, this presumption is not conclusive and may be overcome as well by circumstantial evidence as by the positive testimony of witnesses.
E.C. Thomas and E.C. Wilson, for respondent. Most courts hold that purchase money must be returned by the seller upon a rescission of the contract, if the contract does not provide otherwise, and all courts make the seller return all money, property or choses in action if the contract is violated or rescinded by his wrongful act. Madler v. Silverstone, 34 L.R.A.(N.S.) 1, note; McLain v. Smith, 202 N.W. 239; C.A. Finch Lumber Co. v. Weishaar, 55 N.D. 695, 215 N.W. 155; Downey v. Riggs, 70 N.W. 1091; Bible v. Webb (Wis.) 213 N.W. 309. CHRISTIANSON, Ch. J.
" To the same effect see C.A. Finch Lumber Co. v. Weishaar, 55 N.D. 695, 215 N.W. 155; Graceville State Bank v. Hofschild, 166 Minn. 58, 206 N.W. 948; Stadelmann v. Boothroyd, 170 Minn. 430, 212 N.W. 908; Wadge v. Kittleson, 12 N.D. 452, 97 N.W. 856; Helgebye v. Dammen, 13 N.D. 167, 100 N.W. 245; Otto v. Friese, 20 N.D. 86, 126 N.W. 503; Harrington v. Eggen, 51 N.D. 87, 199 N.W. 447. "A written contract may be rescinded or abandoned by parol by mutual agreement, but by some authorities such parol waiver or rescission is not a bar until it is acted upon or partially carried out."
The presumption is that the renewal notes were taken as a continuation of the debt and not as a payment thereof and that there was no intention on the part of the holder of the indebtedness to release the mortgages securing the payment of the debt. C.A. Finch Lumber Co. v. Weishaar, 55 N.D. 695, 215 N.W. 155; 21 R.C.L. 74, 75. And the evidence in this case, we think, tends to corroborate rather than to contradict such presumption. Did the trial court err in denying the application of the defendant, Ridgeway, and the intervenor, War Finance Corporation, for leave to serve and file supplementary pleadings after the conclusion of the trial?