Appeal from Crawford Circuit Court; Jas. Cochran, Judge;

STATEMENT BY THE COURT.

Appellee brought this action against the appellants, C. D. Shoop and W. S. Shoop.

Appellee testified that the defendants below were, indebted to him in the sum of $75 and interest, for money loaned; that Simon Shoop wanted to borrow the money, but appellee would not loan to Simon unless C. D. would sign with him. C. D. Shoop said to go ahead and let Simon have the money, and he (C. D.) would mortgage his mules for it. Appellee let Simon have the money upon the faith of C. D. Shoop’s promise. C. D. Shoop afterward refused to sign the mortgage, but did sign a note for the money. The note was also signed by one W. N. Shoop and Frank Jack. The note was not due when the suit was commenced, and appellee sued upon the debt, and not upon the note.

C. D. Shoop testified as follows: “I did not borrow any money from the plaintiff. The plaintiff and my brother wanted me to give a mortgage upon my team as a security for money that he was about to loan my brother. I never did agree to sign myself, but did tell them that he could go ahead and give a mortgage on my mules if Simon would also mortgage his wife’s cow for the amount. They came back and wanted me to sign the mortgage after Mr. Baker had loaned my brother the money. I refused to do so unless his wife would put her cow in the mortgage. She refused and I did not sign the mortgage. Then they got my father and Frank Jack to sign a note, and with all of them on the note, I signed it. It was not my debt. I signed the note in good faith.

W. N. Shoop testified that appellee came to him and wanted him to sign a note for seventy-five dollars, saying that he would not hold witness responsible, but only wanted witness to sign so that he could get C. D. Shoop on the note. Witness signed it under a written agreement between himself and the appellee that witness was not to be responsible on the note. The written agreement was read in evidence.

The appellee being recalled, testified that he knew that Simon Shoop was not responsible; that he let Simon have the money solely upon C. D. Shoop’s credit.

Among others, the court instructed the jury as follows: “Baker does not sue upon the note, but does sue upon the account. If Mr. Baker had a valid note and there was no fraud with certain parties, then of course if the note was not due at the time suit was brought, he could not recover the cost in the case. Since that time the note has become due; he could recover upon the note if he w;as suing upon the note, but he is suing upon the original account that he says Dan Shoop stood for, and he let Simon Shoop have the money upon Dan Shoop’s credit. Tf that is true, you ought to give judgment for Mr. Baker against Dan Shoop; if it is not true, you ought not to give judgment against Dan Shoop.

The appellant excepted to the giving of the instruction. The verdict and judgment were in favor of the appellee.

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