
    GUSTAVUS M. MILLER, Resp’t, v. CHARLES J. O’DWYER and ANOTHER, APP’LTS.
    Bills and notes—Consideration.
    Appeal from judgment entered on verdict at circuit and from an order denying motion for new trial.
    
      F. F. O’Dwyer, for app’lts; Louis B. Schram, for resp’t.
   Van Brunt, P. J.

This action was brought to recover upon a promissory note made and endorsed by the defendants. The plaintiffs were payees of the note, and the defendant, Edward F. O’Dwyer, was the endorser. The allegation in the complaint was that such endorsement was made to secure credit with the plaintiffs to the amount of such note. It is urged that there was no proof whatever of this allegation; and it was further urged that no consideration was given for the note in suit and consequently there was no question to go to the jury; and, also, that the proof showed, as far as the endorser was concerned, a diversion of the note, and that he was thereby discharged.

It appears from the evidence in the case that the plaintiffs, at the time of the giving of the note in suit, were the holders of a note made by one T. W. O’Dwyer which was unpaid, and it is claimed, upon the part of the defendants, that the note in suit was given upon a promise, upon the part of the plaintiffs, to return or 'give up to them the note of T. W. O’Dwyer, and that they refused so to do.

tfpon the part of the plaintiffs, however, it was claimed that the note in suit was given in payment of the T. W. O’Dwyer note; hut that no demand was ever made upon them for the delivery of that note, nor was anything said about its being given up at the time of the giving of the note in suit.

There was a sharp conflict of testimony in regard to the agreement as to the surrender and the refusal to surrender the O’Dwyer note, and this point was distinctly presented to the jury. They were instructed that if there was this agreement it had not been complied with and the defendant was entitled to a verdict. If, however, the jury found that the plaintiff’s statement was correct, that the note in suit was given in payment of the O’Dwyer note, but nothing was said about giving it up, then there was a right to recover.

The jury decided upon this issue in favor of the plaintiffs, and in this they probably came to an entirely correct conclusion, as it would appear from the record that this claim, in respect to the failure to deliver the O’Dwyer note, was rather an afterthought upon the part of the maker and endorser of the note in suit. The jury undoubtedly believed the plaintiffs’ witness who testified to the fact that no refusal had ever been made to deliver the first note, and that no demand whatever was made therefor, and there is no evidence that the plaintiffs ever made any claim upon the note of T. W. O’Dwyer after the time of the giving of the note in suit, which they claimed to have received in payment of such note.

There seems to have been no error committed in the course of the trial, and the judgment and orders appealed from should be affirmed, with costs.

Brady and Daniels, JJ., concur.  