
    Henry Homberg vs. August Kikhaffer.
    April 28, 1890.
    Action on Destroyed Note. — The plaintiff, suing upon a promissory note made by defendant to him, is entitled to recover’ thereon although it appear that the plaintiff had delivered the note to a third party, offering to transfer it to him for a stated consideration; that such offer was refused; but that such third party had destroyed the note.
    Appeal by plaintiff from an order of the district court for McLeod county, Edson, L, presiding, refusing a new trial of an action on a promissory note for $200.
    
      R. H. McClelland, for appellant.
    
      Ed. H. Huebner, for respondent.
   Dickinson, J.

This is an action to recover the amount of a promissory note admitted to have been made by the defendant to the plaintiff. The answer put in issue the plaintiff’s title, and alleged payment. It appeared by the evidence on the part of the plaintiff that he had caused the note, to be delivered to a third party, — the defendant’s son, — the plaintiff offering to transfer the note to him as payment pro tanto of a debt due him from the plaintiff; that this offer was refused, nor was anything credited to the plaintiff on account of the note, and the plaintiff afterwards paid the debt referred to. The note was never returned to the plaintiff, but the defendant’s son destroyed it.

Such being the case presented by the plaintiff at the trial, the court dismissed the action. This was error. The plaintiff made a prima facie case, which at least should have gone to the jury. The fact that the note had been destroyed would not preclude a recovery against the maker. The court seems to have considered that, upon the showing thak a third party had wrongfully destroyed the note, the action must be prosecuted -against him, and cannot be maintained against the maker. This is not the law. The destruction of the note, under the circumstances stated, did not -extinguish the obligation of the maker expressed in it, nor divest the plaintiff of his cause of action against the maker.

Order reversed.  