#### SANBORN and another, Respondents, vs. Walters, imp., Appellant.

*January 13*

January *31, 1911.*

*Bills and notes: Limitation of actions: Partial payment: Evidence: Sufficiency: Inferences: Circumstantial evidence.*

1. A finding by the jury to tbe effect that a certain payment made upon a promissory note within six years prior to the action was made in part by each of the defendants, is *held*to be sustained by the evidence.

2. A jury may draw legitimate inferences from the facts established.

3. A material fact in a civil or criminal case may be established by circumstantial evidence, when the circumstances are such as to lead fairly and reasonably to the conclusion sought to be established.

Appeal from a judgment of the circuit court for La Crosse county: E. C. IIigbee, Circuit Judge.

*Affirmed.*

*A. P. Parsons,*for the appellant.

Eor the respondents there was a brief by *Garl P. Qeilfuss*and *J. E.*Higbee, and oral argument by *Mr. Higbee.*

KerwiN, J.

This action was brought to recover a balance due on a promissory note for $2,500 executed November 22, 1901, by the defendants as joint makers. There was a verdict and judgment 'for the plaintiff against defendant *Herman H.*Waltersno service being had on defendant Emil R. Walters. Defendant *Herman H. Walters*appealed.

The only question involved is whether there was evidence sufficient to support the verdict on the question of payment of $200 December 15, 1903, by defendant *Herman H. Wal*ters, which payment, if made, prevented the bar of the statutes of limitation, which was the only defense urged, the execution and delivery of the note being admitted. Divers payments of interest were made between November 1, 1902, and November 21, 1903, and $500 on the principal Novem*85ber 1, 1902, besides tbe $500 paid December 15, 1903, which latter payment defendant *Herman H. Walters*claims was made by Emil R. Walters, and no portion of it by bim, therefore tbe statute bad run against tbe note as to bim when suit was brought in October, 1909. Tbe plaintiff’s contention is tbat $200 of tbe $500 payment made December 15, 1903, was made by defendant *Herman H. 'Walters.*Tbe jury found tbat it was, and we think tbe verdict is supported by tbe evidence.

On tbe question of payment of tbe $500 indorsed on tbe note December 15, 1903, one of tbe plaintiffs testified: *“Q.*Do you know whether this $500 was paid by Emil or *Herman Walters? A.*I bad a draft of $200 bearing *Herman Walters’s*signature and $300 in cash was paid me by Emil Walters at my office in Milwaukee.” There was also testimony to tbe effect tbat *Herman Walters*bad made payments on tbe note prior to December 15, 1903. Tbe defendant *Herman Walters*was called by tbe plaintiff and examined as an adverse witness under sec. 4068, Stats. (1898), and denied tbat be bad ever paid any amount on tbe note, ■except tbat be loaned to bis brother some money to make up tbe first $500 payment. This evidence was shown by letters written by defendant *Herman Walters*to be so incredible tbat tbe jury would be warranted in disbelieving it. One letter written by bim to *James 8. Sanborn,*one of tbe plaintiffs, shows tbat tbe $500 payment of November 1, 1902, was made by defendant *Herman Walters.*There are other facts .and circumstances in tbe record tending to shoAv tbat defendant *Herman Walters*did contribute to tbe payment of $500 made December 15, 1903. Where there is any credible evidence to support a verdict it cannot be disturbed. *Wis. F. L. Co. v. Bullard,*119 Wis. 320, 96 N. W. 833; *Nolan v. Kroening,*130 Wis. 79, 109 N. W. 963; *Bazelon v. Lyon,*128 Wis. 337, 107 N. W. *337; Roedler v. C., M. & St. P. R. Co.*129 Wis. 270, 109 N. W. 88; *Hein v. Mildebrandt,*134 Wis. 582, *86115 N. W. 121; *Sheboygan Co. v. Sheboygan Falls,*135 Wis. 128, 115 N. W. 330.

Counsel for appellant contends that tbe verdict is based upon inference. But tbe jury were entitled to draw legitimate inferences from tbe facts established. *Meyer v. Hope,*101 Wis. 123, 129, 17 N. W. 720; *Gates v. Hughes,*44 Wis. 332, 336. Where there is any credible evidence from which a reasonable inference can be drawn in support of the claim of either party the question is for the jury. *Kersten v. Weichman,*135 Wis. 1, 114 N. W. 499; *Morgan v. Pleshek,*120 Wis. 306, 97 N. W. 916; *Beyer v. St. Paul F. & M. Ins. Co.*112 Wis. 138, 88 N. W. 57.

A material fact in a civil or criminal case may be established by circumstantial evidence, when the circumstances are such as to lead fairly and reasonably to the conclusion sought to be established. In the instant case we think the jury were warranted in finding as they did, therefore the judgment must be affirmed.

*By the Court.*— The judgment of the court below is affirmed.