x999-1" type="majority"> RICHARDS, J.

The plaintiff commenced this action against the defendant to recover judgment upon a promissory note for the sum of $75,000 executed by the de *789 fendant to one J. F. Carlston and by the latter assigned and transferred to the Anglo & London Paris National Bank and by said corporation transferred to the plaintiff herein for collection, and upon which it is alleged that the sum of $66,754.17 remains and is due, payable and unpaid. This promissory note was one of the two promissory notes involved in that certain series of transactions between said J. F. Carlston and the defendant and appellant herein and which form the subject of the decision of this court in the ease of Smith v. Carlston, ante, p. 541 [271 Pac. 1091], this day handed down. The answer and counterclaim which the defendant herein presented embraced the same matters of both law and fact which were presented by the plaintiff in that action to the trial court and by the appellant therein to this court upon appeal. Upon the trial of this action the trial court ordered a directed verdict to be returned by the jury in favor of the plaintiff herein, based upon its conclusion that the matters set forth in the defendant’s said answer and counterclaim did not constitute a defense to this action. Upon the return of such verdict and upon the entry of a judgment in the plaintiff’s favor the defendant has prosecuted this appeal. The decision by this court in the case of Smith v. Carlston, supra, is decisive of the controlling question presented upon this appeal and renders unnecessary a discussion of the incidental questions which have been presented and elaborately argued by respective counsel therein.

It follows that upon the authority of Smith v. Carlston, supra, the judgment herein appealed from must be and the same is hereby affirmed.

Waste, C. J., Preston, J., Seawell, J., Curtis, J., Langdon, J., and Shenk, J., concurred. .

Rehearing denied.

All the Justices concurred.

*790 /

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