Winders

— This appeal is taken by defendant Charles E. Sperry from the judgment and from an order refusing a new trial.

*195 The action is by the indorsee of a non-negotiable note against the two makers, and the appellant separately defended on the ground that his contract was without consideration.

The trial was by the court, which found for the plaintiff. On only one important point is there a conflict in the evidence. Resolving that as we are bound to in favor of the decision, we have this state of facts: E. N. Sperry, being without credit, but desiring to borrow some money from Charles Sperry, who was his nephew and son-in-law, told Charles that he had spoken to his son —, the appellant—in regard to the matter, and that his son said if he, Charles, would loan the money to him, E. JST., the son would be responsible for the payment of it, and would sign the note as joint maker. Thereupon Charles gave E. N. his check for the amount, and took a note signed only by E. N., but in form joint and several, reading. “ We, or either of us, promise to pay,” etc. Charles knew when he loaned the money that E. N. was not able to pay, and told him then that he looked wholly to appellant for…