¶1delivered the opinion of the court.
¶2The only question necessary to be considered is as to the sufiiciency of the evidence to sustain the verdict. But one issue of fact was submitted, viz.: was the second note accepted in payment of the note sued on, or was it merely given as additional security ? The giving of the second note for the same debt did not necessarily operate to extinguish the liability upon the first note. Wilhelm v. Schmidt, 84 Ill. 183; Walsh v. Lennon, 98 Ill. 27; Bond v. The L. & L. & G. I. Co., 106 Ill. 654; S. & G. Co. v. G. I. Works, 124 Ill. 623; Chisholm v. Williams, 128 Ill. 115.
¶3These decisions distinctly hold that if the giving of the second note operated to extinguish liability upon the first note, i. e., the note sued on, it could only be by reason of an express agreement of the parties to that effect. In the absence of any such agreement, the presumption would prevail that it was additional security and not a payment.
¶4It may be that such an express agreement might be established by facts and circumstances surrounding the transaction, as well as by a more formal and distinct contract. Wilhelm v. Schmidt, supra. But the facts here all indicate that the parties did not regard the giving of the second note as a payment of the first. Hyde says that Tyler refused to surrender the first note, and insisted that he would retain it to hold Winslow until a $1,200 note, secured by a first mortgage upon the real estate conveyed to secure the $2,350 note, should be paid. The note sued on was not surrendered, but retained by plaintiffs in error. The written undertaking by plaintiffs in error to release Winslow upon the payment of the $1,200 note, is also wholly inconsistent with a payment of the first note by the giving of the second.
¶5There can not be said to be any evidence in the record here sufficient to sustain a finding to the effect that there was a payment of the first note. The verdict, as being clearly against the weight of the evidence, should have been set aside and a new trial should have been awarded.
¶6The judgment is reversed and the cause remanded.