¶1(dissenting). — On the prior appeal we held that the trial court was in error in’ directing a verdict for defendant, and that the testimony set out by the majority as to the first $500 was material and competent. We now say the ease should not have gone to the jury as to this payment, but admit the testimony was material and competent as bearing upon the first $500 payment. I feel that, while the testimony was perhaps weak, it was enough to take the case to a jury.
¶2It is practically admitted that if plaintiff paid or delivered to Collins the $500 in cash on -December 18th, he is entitled to recover. No one claims that the money was paid on other obligation or was a gift to Collins. I think the majority are usurping the functions of a jury in weighing testimony.
¶3I concur in the dissent of Deemer, J.