Ellington

This action was begun to collect the sum of $2,000, based upon two promissory notes executed and delivered by the defendant to the appellant. One note was for the sum of $1,000, and one note for the sum of $1,040. While the notes sued upon are dated, respectively, September 21, 1931, and October 10, 1931, the record shows that they are renewal notes. The first notes issued by the defendant and delivered to the plaintiff appear to have been delivered on February 21, 1931, and on April 10, 1931. The dates of the renewal notes, which were subsequently merged into the notes dated September 21, and October 10, 1931, do not satisfactorily appear in the record. Sufficient to state, however, that the first note executed and. delivered to the plaintiff was dated February 21, 1931. This note was signed by the president of the defendant corporation, and given in his' individual capacity, and subsequently taken up, and a note signed by the corpora tion issued in lieu thereof. Both notes are unconditional promises to pay.

The answer of the respondent admitting the execution of the notes alleges that the two notes were really conditional notes; that at the time of the execution of the first…