Arnheim

This is an appeal from an order denying defendant’s motion for a new trial and to vacate the judgment in an action to recover money alleged to have been loaned by the plaintiff to the defendant.

The complaint is in two counts, but the trial court having granted defendant’s motion for a nonsuit as to the second count—covering an alleged indebtedness in the sum of one hundred dollars—and no appeal having been taken therefrom, we are confined to a consideration of the court’s action upon the first count, resulting in the entry of judgment in favor of plaintiff for the sum of five hundred dollars.

It appears'that on the third day of June, 1907, the plaintiff, desiring some money, executed to the defendant his promissory note for the sum of one thousand dollars, which the defendant, pursuant to a previous understanding with the plaintiff, negotiated or discounted for plaintiff’s account. This note was subsequently paid in full by plaintiff. Of the sum thus raised defendant paid over to the plaintiff five hundred dollars. This amount plaintiff, it is not questioned, contributed to a business in which both parties to this action with another were interested as partners. As to the…