#### WINGFIELD, PUBLIC EXAMINER, Appellant, v. LITTLE, Respondent.

(168 N. W. 716.).

(File No. 4345.

Opinion filed September 3, 1918.)

1. Negotiable Instruments — Maker's Signature — Conflicting Testimony — Evidence, Sufficiency.

Where the sole issue was whether defendant signed the note sue on, he alone having sworn he did; held, that while to Supreme Court it might seem that his unsupported statement was overcome by testimony of plaintiff’s witnesses, yet, the evidence fairly warranting the verdict for defendant, it will not be disturbed. So held, against the objection that jury “failed to fairly exercise reasoning faculty on the facts.”

2. Same — Proof of Signature — Credit to Defendant Partnership for Note with Payee Bank, Effect re Evidence of Signing.

Where the issue in a suit 'by payee bank upon a note was whether defendant signed same, the fact that plaintiff’s books showed that a firm of which defendant was a member received credit for amount of the note, is of little -probative force in support of claim that defendant signed the note, though such fact might he controlling in a suit for money had and- received.

Appeal from Circuit Ociurt, Lyman County. Hon. William Williamson, Judge.

Action by J. L. Wingfield!, Public Examiner, in charge of the Citizens’ State Bank of Oacoma, against W. -W. Little, to recover upon a promissory note. From a judgment for -defendant, and from an order -denying a new trial, plaintiff -appeals.

Affirmed.

*Bar tine, Bartine & Wcdl,*for Appellant.

*Albert Williamson,*for Respondent.

WBITI'NIG, P. J.

The assignments icif error upon this appeal ■raise but one question meriting our consideration. Was there evidence sufficient to support the verdict?

[1] Appellant contends ith-at, as in Drew v. Lawrence, 37 S. D. 620, 159 N. W. 274, we should bold that the jury “failed1 to fairly exercise the reasoning faculty on the facts- before them.” The sole issue herein was whether respondent signed1 the note s-ued -on. He -swore that he did nlc-t; -and while, without being able to *61see and hear 'the witnesses, it might seem to us that his unsupported statement was overcame by the testimony of the witnesses, called by appellant, the question of the weight to be given his testimony was a question peculiarly for the jury. There was evidence which fairly warranted -the verdict of the jury. Hence, under the well-established rule of this jurisdiction, such verdict will not foe disturbed. Brewing Co. v. Mielenz, 5 Dak. 136, 37 N. W. 728; Jeansch v. Lewis, 1 S. D. 609, 48 N. W. 128; Drew v. Lawrence, supra.

[2] Appellant -lays great stress upon the fact that the bank’s books show that a firm, of which respondent was a member, received credit for the amount of this note upon the books of the bank. We do not consider this fact of much probative force in Support of the claim that respondent signed the note, though such fact might be controlling in an action brought for money had and received.

Appellant asks us to examine the signature attached to the note, and to compare same with admitted signatures of respondent. Among the signatures he would have- us consider are those attached to the answer herein. The record does not disclose that such answer was received in evidence, or that the signatures attached fherto were proven to be those of respondent.

The judgment and order appealed from are affirmed.