
    No. 19,828.
    The State Savings Bank of Iola, Appellant, v. Charles Michael et al., Appellees.
    
    SYLLABUS BY THE COURT.
    Directed Verdict — Defenses Disregarded — New Trial Properly Atoarded. A new trial is properly granted when the court, disregarding pleaded defenses sustained by evidence, has instructed a verdict for the plaintiff.
    Appeal from Allen district court; Oscar Foust, judge.
    Opinion filed January 8, 1916.
    Affirmed.
    
      Charles H. Apt, and Frederick G. Apt, both of Iola, for the appellant.
    
      Baxter D. McClain, of Iola, and J. T. Cooper, of Fredonia, for the appellees.
   The opinion of the court was delivered by

Burch, J.:

The action was one to recover on a promissory note. The court instructed the jury to return a verdict for the plaintiff. Afterwards the court granted a new trial. The plaintiff appeals.

Michael, Fowler and Farmer gave their note to the plaintiff and secured it by a chattel mortgage on property contained in a laundry. They sold the laundry to Bruner, who assumed and agreed to pay the chattel-mortgage debt. Afterwards Bruner gave possession to the plaintiff, who sold and bid in the property. There was evidence that the property was more than sufficient to pay the plaintiff’s lien. Only a small sum was credited on the note as the net proceeds of the sale. The plaintiff then sued the makers of the note. Their answer contained two defenses upon which evidence was introduced but which the court ignored when directing a verdict. One defense was that the plaintiff agreed with Bruner to take the property covered by the chattel mortgage in full satisfaction of the debt. The other defense was that the sale was so conducted as to amount to a conversion of the property so that the plaintiff should be charged with its full value. Both defenses were clearly available to the defendants, there was evidence to sustain each one, the court erred in' not submitting them to the jury, and the new trial was properly awarded.

The judgment of the district court is affirmed.  