
    William Johnston et al. v. The Merchants’ Bank.
    No. 13,585.
    (76 Pac. 1129.)
    Error from Wyandotte district court; E. L. Fischer, judge.
    Opinion filed April 9, 1904.
    Reversed.
    
      S. S. Ashbaugh, for plaintiffs in error.
    
      MeFadden dé Morris, for defendant in error.
   Per Curiam:

The note sued on was non-negotiable. (Bank v. Gunter, 67 Kan. 227, 72 Pac. 842.) Johnston, one of the makers of the note and one of the defendants below, testified as follows:

“Ans. When I got notice from Ladd, Penny & Swazey (the payees) that the note was due, or about due, I paid’ the note.
“Ques. Did you pay it in full ? A. Yes; sir.
“Q. To whom? A. To Ladd, Penny & Swazey.
“Q.' And at what time ? A. I sent the money on the day or the second day before it was due, from home, to pay the note.
“Q. What notice, if any at that time, did you have that Ladd, Penny & Swazey were not the holders of the note ?' A. I had none.”

There was other testimony in the case tending to show payment.

It is evident that the trial court treated the note as negotiable. The evidence should have been submitted to the-jury.

The judgment of the district court will be reversed and. a new trial granted.  