#### W. T. Rawleigh Medical Company, Respondent, vs. Tillman and another, imp., Appellants.

*September 18*

October *6, 1914.*

*Bills and notes: Conditional execution.*

In an action upon a promissory note, findings hy the jury negativing the claims of two of the defendants that they signed the note on condition that it was not to he delivered unless signed by another person, and a finding that plaintiff did not receive the note with knowledge of such an understanding, are *held*to he supported by the evidence.

Appeal from a judgment of the circuit court for Oconto county: W. B. QuihlaN, Circuit Judge.

*Affirmed.*

This action was commenced by the plaintiff, and it alleges an agreement between the plaintiff and the defendant Stroud for the sale of the plaintiff’s products by Stroud at prices fixed by the contract, and that the defendants *Tillman*and *Arndt*and one Jacob Spies guarantied performance of the contract by Stroud.

From the record it appears that in the year 1909 the plaintiff and defendant Stroud entered into an agreement whereby Stroud agreed to devote his entire time to the sale of plaintiff’s products at a price fixed by' the plaintiff, and to pay for them the way specified, and in consideration thereof the plaintiff agreed to sell and deliver to the defendant its products. The defendants *Alvin Tillman*and *A. 0.*Arndt, together with one Jacob Spies, guarantied in writing the faithful performance of the contract by Stroud and.the payment of any balance due the plaintiff by the defendant Stroud. In the month of December of the year 1910 a representative of the plaintiff visited Stroud to arrange a settlement. After packing what goods the defendant Stroud had on hand and Stroud receiving credit therefor, the amount of $790 was agreed to as the balance due the plaintiff from *355Stroud. Tbe representative of tbe plaintiff company made out a note for that amount and tbe defendant Stroud was to procure tbe signatures of tbe guarantors. There is a conflict in tbe testimony of plaintiff’s representative and tbe defendant Stroud as to whether Spies was to sign tbe note;plaintiff’s representative testifying that tbe defendant Stroud told him it would be useless to try and procure Spies’s signature, while defendant Strofid testifies that tbe understanding was that he was to secure tbe signatures of all guarantors to tbe note. Defendant *Tillman*was the first of tbe guarantors seen by Stroud, who testifies that be saw *Tillman*and that *Tillman*stated “be would sign tbe note provided *Mr. Arndt*and Mr. Spies signed it.” After procuring this signature Stroud and tbe plaintiff’s representative went to see *Mr. Arndt.*Stroud testifies to the effect that *Arndt*stated in tbe presence of tbe plaintiff’s representative that be, Arndt, would sign tbe note provided Mr. Spies signed it, and that if Spies would not sign it tbe note was to be returned to him. Plaintiff’s representative testified that be beard no such conversation between *Mr. Arndt*and Stroud. Directly after obtaining this second signature to tbe note it was turned over to tbe.representative of tbe plaintiff, who gave Stroud a receipt for it and departed.

Tbe special verdict of tbe jury found in substance and effect:

(1) That it was not understood and agreed between John Stroud’ and *A. G. Arndt*in tbe presence of Coliman, tbe representative of tbe plaintiff, that if Jacob Spies did not sign tbe note it was not to be delivered to tbe plaintiff company, but should be returned to the defendant *Arndt.*

(2) It was not agreed between *Alvin Tillman*and John Stroud that *Tillman*would sign tbe note upon tbe condition that John Stroud would procure tbe signature of Jacob Spies to the same, and if be did not the note was to be returned to *Alvin Tillman.*

*356(3) Tbe note was not received by tbe plaintiff company with frill knowledge of tbe understanding that it was not to be delivered to it unless signed by Jacob Spies.

Tbe court denied tbe defendants’ motions to change tbe answers to tbe special verdict of the jury and for judgment thereon and for a new trial.

Tbe court granted plaintiff’s motion for judgment for tbe sum of $790 with interest at six per cent, from tbe 12th day of December, 1910, and for costs and disbursements in this action, from which judgment this appeal is taken.

Eor the appellants there ivas a brief by *Olen & Olen,*attorneys, and *Eberlein & Larson,*of counsel, and oral argument by *M. Q. Eberlein.*

Eor the respondent there was a brief by *Classon & O’Kel-liher,*and oral argument by *V. J. O’Kelliher.*

SiebecKER, J.

It appears without dispute that on December 12, 1910, the defendant Stroud was indebted to the plaintiff in the sum of $790 and that the note in question was signed by Stroud to evidence this indebtedness. The jury found that the plaintiff accepted the note without any knowledge of the claim made by the defendants Stroud and *Arndt to*the effect that *Tillman*and *Arndt*signed the note with the understanding that it was not to be delivered to the plaintiff unless the third guarantor, Jacob Spies, signed it. The evidence relative and material to this issue is in conflict and was an issue for the jury to determine. The jury also negatived the defendants’ claims that *Tillman*and *Arndt*signed the noté upon the condition that it was not to be delivered unless Spies signed it. These were proj)er jury questions under the facts and circumstances of the case. The verdict cannot be held to be against the clear preponderance of the evidence and must be accepted upon the issues raised by the pleading and the conflict of the evidence. The court properly awarded judgment on the verdict.

*By the Court.*— Judgment affirmed.