
    Gard v. Neff.
    1. Where an action is prosecuted, by A., guardian of B., on an instrument payable to “A., guardian of B.,” the fact that the ward becomes of age pending the suit affords no ground to abate it.
    
      2. The payment of interest, in advance, upon a promissory note is not of itself conclusive evidence of a contract to extend the time of payment of the note for the time for which interest may have been thus paid.
    Error to the District Court of Clarke county.
    On December 1, 1.871, Eli J. Gard as principal, and Benj. M. Gard as surety, gave to Adam Neff, the guardian of Edgar J. Barr, a minor, their promissory note of the following tenor:
    “ $500. One year after date, we, or either of ns promise to pay to Adam Neff, guardian of Eugene J. Barr, or order, the sum of five hundred dollars, with interest from date at the rate of 8 per cent, per annum. Value rec’d. Interest payable annually. .Dee. 1st, A.D. 1871.
    [Signed] ... • E. J. Gard,
    13. M. Gakd.”
    On May 17, 1875, Neff, 'being still such, guardian, commenced an action in the Court below upon this note, describing himself in'hiá petition as such guardian, alleging the minority of his ward, his own guardianship, the non-payment of the note, except certain credits, and praying judgment upon it. The defendant, Benj. M. Gard (now plaintiff in error), answered separately, alleging payment b3rthe principal, on the 29th day of Aug., 1873, of $50, and an agreement in consideration thereof, between the principal and the plaintiff to extend the time of payment of the note for two jrnars from September 1st, 1873, which payment and agreement he alleged to have been without his knowledge or consent, whereby he claimed to be discharged from liability on the note.
    Among other endorsements upon the note is the following: “ Aug. 29th, 1873, received interest in advance from the 1st day of Sept., 1873, two years in advance” — the amount of which the defendant alleges w.as the $50 mentioned above. The plaintiff joined issue by reply with these allegations of payment and agreement, and alleged fraud and misunderstanding in the making or procurement of the endorsement of Aug. 29th, 1873. Upon the plaintiff’s ward attaining his majority, the defendants filed, upon leave, a joint supplemental answer alleging this fact and praying that the action, for that reason, be dismissed. The plaintiff’s demurrer to this pleading was sustained and the defendants excepted. Upon the trial each party gave evidence tending to maintain the issues on his part, and at the conclusion of the testimony, after the general charge, the Court charged the jury (to which the defendants excepted) as follows:
    “ The payment of interest in advance is not of itself conclusive evidence of a contract to extend the time of the payment for the term for which interest may have been thus paid, ,but it is a strong circumstance to be looked to by the jury in determining the existence of the contract claimed.”
    
      The general charge is not in the record, nor does it appear that the above was all that was given upon the same subject.
    The verdict and judgments were for the plaintiff below.
    The sustaining of the demurrer to the supplemental answer and the giving of the above instruction, are the errors assigned as grounds of reversal of the judgment below.
    
      Keifer <& White, for plaintiff in error.
    
      George Spence and J. K. Mower, for defendant in error.
   Owen, J.

Was there error in holding, by sustaining the demurrer to the supplemental answer, that the coming to his majority by the ward of Neff was no ground for dismissing the action. The propositions contended for by the plaintiff iu error are, that the note in suit was a contract for the ward ; that the proceeds belonged to him; that the beneficial interest was his; that Neff is named in the note and the suit because of the disability of the ward to contract or sue ; that upon the ward coming to his majority, the disability and the guardianship at once determined, and with them the right of the plaintiff further to prosecute the action.

We are not called upon to consider the respective relations which the guardian and ward sustained to this note or its proceeds, nor to consider the power of the guardian to bind his ward by the act of taking the note, or of bringing suit upon it, for if he had no such power, there clearly was no error, and if the position contended for is sound, the form of, and parties to, the action were abundantly provided for by sections 25 and 27 of the Code of Civil Procedure, S. & C. Stats. 951 and 953, which provided that every action must be prosecuted in the name of the real party in interest, except that a person with whom or in whose name a contract is made for the benefit of a/nother * * may bring an action without joining with him the person for whose benefit it is prosecuted. The promise of the defendants was to pay Neff, who was named as guardian; the action was by Neff as plaintiff, although described as guardian. His right to “prosecute” the action was clear, and no error intervened in the refusal to dismiss the action or order its abatement upon the ward reaching his majority.

II. Did the Court err in charging the jury that “ The payment of interest in advance is not of itself conclusive evidence of a contract, to extend the time of the payment for the time for which interest may have been thus paid?”

The plaintiff in error has marked for attack a single fragment of the charge. If the instruction complained of is erroneous, it is so because payment of interest in advance is of itself conclusive evidence of a contract to extend the time of payment. That such payment of interest implies such a contract, is prima facie evidence of it, is sufficient evidence of it, are propositions supported by numerous cases cited, and we have no disposition to question their entire soundness. But no case is presented going beyond this.

Payment is not itself a contract. It presupposes the existence of a contract to be in part performed by payment. Upon the principle contended for, the mere physical fact of payment of interest in advance — of such part performance- — -would conclude all controversy as to the contract under which it was made, and exclude every inquiry concerning fraud, mistake, misunderstanding, qualifying conditions, or other circumstance affecting the integrity or force of the contract itself. This would contravene an elementary principle.

The Court was right.

Judgment affirmed.  