
    John Erickson vs. Christopher Roehm and another.
    January 3, 1885.
    Stolen Promissory lióte — Estoppel—Evidence.—Evidence held as not tending to show an estoppel.
    Plaintiff brought this action in the district court for Clay county against the defendants as makers of the following instrument, viz.:
    300. Geor&etown, May 5, 1883, Clay County, Minn.
    “Six months after date I promise to pay Johan Johnson the sum of three hundred dollars, with interest at seven per cent, until paid.
    “Christopher Boehm:.
    “Adam Stein.”
    The defence to the action was based upon the facts that after the defendants had made and delivered the above note, it was returned to them because non-negotiable, and a negotiable note was given in its place, and that subsequently the note in suit was stolen from the defendants.
    The action was tried by Stearns, J., and a jury, and defendants had a verdict. Plaintiff appeals from an order refusing a new trial.
    
      Burnham, Mills & Tillotson and Mosness é Douglas, for appellant.
    
      Coleman é Bornstedt, for respondent.
   Gilfillan, C. J.

Action on a note not negotiable, for $300, payable to Johan Johnson. The only question in the case is on the charge of the court to the effect that there was no-evidence in the case to establish an estoppel. Plaintiff claimed that defendants were es-topped to deny the validity of the note. The only evidence on which the claim is made established only these facts: May 3, 1883, the defendants executed and delivered the note to Johnson. A few days after, he, discovering it to be non-negotiable, brought it back, and requested them to give him instead a negotiable note. This they did, and he surrendered the first note to Boehm, who put it on the safe in his store. It was afterwards stolen, but under what circumstances does not appear, and it was transferred by Johnson to plaintiff. Aft-erwards, and before plaintiff had fully paid Johnson for the note, apparently on some inquiry made by plaintiff, both notes being at the time outstanding, Eoehm, not knowing that any but the second note was out, wrote him that “the note that Johan Johnson holds against me for the sum of three hundred dollars ($300) is correct.” There is no evidence tending to show negligence on the part of Eoehm in regard to the larceny of the note, and none can be charged against him in the writing of the letter, as he did not know at the time that this note was out. The charge was correct.

Order affirmed.  