#### Russell, Respondent, vs. Scofield, Appellant.

*November 27*

December *13, 1907.*

*Trial: Direction of verdict: Negotiable instruments: Evidence: Weight and sufficiency: Impeaching written instruments.*

1. In an action against an accommodation mater of a promissory note, pledged as collateral in violation of the agreement under wliicli it was signed, under the evidence, stated in the opinion, it is *held*that the trial court properly directed a verdict for plaintiff for the amount unpaid on the note.

2. Mere evidence of an interested person as to an admission tending to impeach a written instrument (a promissory note), entirely uncorroborated and unequivocally denied by the person said to have made the admission, is not sufficient; the rule in that regard being nearly as strong as in case of á conveyance of realty.

Appeal from a judgment of the circuit court for Outa-.gamie county: Johu Goodlaed, Circuit Judge.

*Affirmed.*

Action to recover on a promissory note. November 18, .1904, W. C. Jenkins made his ninety-day promissory note *22for $250 payable to tlie order of defendant and obtained the latter’s indorsement thereon, with the understanding that it was to be used to renew and take up a note of the same amount previously so made and indorsed. Instead of the new note being used as intended by the indorser, November 25, 1904-, Jenkins turned it out to plaintiff as collateral security for payment of a loan of $125 made by him to Jenkins and evidenced by note, and December 12th thereafter, as claimed, a further loan was made by him to Jenkins of $100 on said collateral, a note for such second loan being given by Jenkins and the Times Publishing Company. One hundred and sixty-five dollars was paid on such loans and indorsed on the note in suit. There was no controversy on the pleadings but that plaintiff was entitled to. recover at least the balance, if any, of the amount loaned by plaintiff, if he took the note without notice of the special purpose for which it was indorsed. A verdict was directed for $82.81, being such amount, as determined by the court. Judgment was rendered accordingly.

D¡ *Q.*Classon, for the appellant.

*Carl D.*Jackson, for the respondent.

Marshall, J.

The sole question raised is: Was there a jury question respecting the amount for which the note in suit was pledged as security ? The evidence was positive and without dispute as to the first loan of $125. A check was produced and received in evidence showing payment thereof to Jenkins. A note covering the second loan of $100, specifying that the $250 note was pledged as collateral thereto, was put in evidence and no question was raised as to its genuineness. Payment of the $100 to Jenkins was proved by production o.f the bank check used for that purpose. There was evidence to the effect that the attorney for respondent had the $125 note in his possession for collection when the collateral note was given him for such purpose, and that when payment was made to him of $150 the former was delivered up. Opposed *23to tbe ease as so made, was only evidence by Mrs. Jenkins tbat respondent admitted to ber be advanced on tbe note only $125. Tbat be positively denied;

It does not seem tbat tbe jury would bave been warranted in finding in favor of appellant in face of tbe writings mentioned. Tbe second loan was conclusively established by tbe note expressly pledging tbe one in suit as collateral thereto.

Tbe rule invoked by counsel tbat a verdict should not be directed where there are reasonable conflicting inferences from tbe evidence respecting tbe right of tbe matter does not apply, because there were no such inferences as tbe trial court properly, so far as we can discover, viewed tbe case. A written instrument unquestionably executed by ,a person by whom it purports to bave been made, as in case of tbe $100 note, cannot be properly condemned as false and fraudulent except upon clear and satisfactory evidence. Mere evidence of an interested person as to an admission impeaching tbe instrument, entirely uncorroborated and unequivocally denied by tbe person said to bave made tbe admission, is not sufficient. Tbe rule in tbat regard is nearly as strong in support of written instruments generally as in case of conveyances of realty, in respect to which evidence proving tbe fraud beyond all reasonable controversy is necessary. *Kercheval v. Doty,*31 Wis. 476; *Baumann v. Lupinski,*108 Wis. 451, 84 N. W. 836; *Linde v. Gudden,*109 Wis. 326, 85 N. W. 323.

*By the Court.*— Tbe judgment is affirmed.