he endorsed it and handed it back to Medhurst. The books of Wells, Fargo & Co. showed a deposit on that day of $1,500 by Medhurst to his own private account. On the stub of the check was written loan to Mackintosh. Defendant testified that he got nothing, but simply indorsed the check because Medhurst asked him to do so.

The evidence further showed that on February 4, 1882, Medhurst directed Fox, the book-keeper, to enter on the stub of the check for $1,700, that it was a loan to Mackintosh, and on the stub of the check for $1,500 that it was a loan to Mackintosh, and on the blotter book $7,000 bills receivable dr. to note of Mackintosh, which entries were made without defendant's knowledge or consent.

The testimony bearing on the giving of the $7,000 note was as follows: Mackintosh testified that Medhurst represented to him that in negotiating for the Hecla mine in Montana, he and two associates were out expenses in the sum of $7,000, and that he wanted to borrow a note for that amount as an asset for himself and his associates, that it was a mere matter of form, that the negotiation had fallen through, and that the Old Telegraph mine was being transferred; that he stepped up to Medhurst's office; that there the two notes Medhurst to Mackintosh and Mackintosh to Medhurst were drawn, and the memorandum given by Medhurst; that Medhurst then told Fox that the note was Medhurst's personal property and was not to be negotiated, and the transaction was concluded there; that there Medhurst gave Fox an order about a check, and a check for $1,500 was drawn and handed over to him, and he endorsed it and handed it back to Medhurst, supposing it was on the transfer of the account; that he had talked with Medhurst once since about getting back his note, but Medhurst had replied that the arrangements were not complete, but that he would hand him back his note in a little time; that in 1884 Medhurst had left the country under a cloud. Fox testified that the note was given to him by Medhurst, with orders not to negotiate it, and that it was put in the safe, and remained there until some time in 1884. The other facts appear in the opinions.

Messrs. Marshall & Royle, for appellants.

Messrs. Bennett, Harkness & Kirkpatrick, for respondent.

BOREMAN, J.:

The plaintiff (appellant) sued the defendant (respondent) upon a promissory note as maker. Upon the trial, judgment was rendered for the defendant. The plaintiff moved for a new trial, which, being overruled, he appealed to this court from both the judgment and from the order overruling the motion for a new trial. The facts of the case are substantially as follows: The plaintiff had since 1879 been engaged in mining in Utah. It was represented in the territory by F. Medhurst and C. B. Cohen. Medhurst was the manager of its financial affairs, under the style of "Commercial Director." Cohen was the general manager of the mines. The defendant, prior to and during that time, had been engaged in the business of sampling ores, with office at Salt Lake City. The plaintiff had its ores sampled by the defendant. The accounts for sampling were made out in the name of the company, and the checks given for money to pay such accounts were usually signed, "F. Medhurst, "Commercial Director," or "F. Medhurst, Com. Dir." The financial business of the company was transacted in the name of "F. Medhurst, Commercial Director." This manner of transacting the business of the company was known to the defendant. On the 3d of February, 1882, Medhurst asked the defendant to execute to him his promissory note for $7,000, as a matter of accommodation to him (Medhurst). The note was, as the defendant understood, to be used as an asset in the transfer of the plaintiff's mining property here in Utah, in connection. with some indefinite deal in regard to the Hecla mine in Montana. It was a personal accommodation to Medhurst, to enable him, in the transaction, to present apparently correct accounts. Medhurst promised the defendant that the note should not be negotiated, but should be held only as such asset. The note which Medhurst presented, under

this arrangement, for the defendant's signature, was made payable to "F. Medhurst, Commercial Director." At the same time, in return for the defendant's action, Medhurst executed and delivered to the defendant his note for the same amount, and payable at the same date, and signed "F. Medhurst, Com." Medhurst, also, at the same time, wrote and delivered to the defendant a letter, stating that the note which the defendant had made was a personal obligation to himself, not for value, but in exchange for a note of like amount, term, and interest, given to defendant by Medhurst, and therein promising not to discount or otherwise use the note. This letter was signed, "F. Medhurst." At the same time, and as part of the same transaction, the defendant received, indorsed and handed back to Medhurst a check in the usual form, on McCornick & Co., bankers, for $1,500. The deposits of the plaintiff were kept at that bank under the name of "F. Medhurst, Commercial Director," and the check was signed, "F. Medhurst, Com. Dir." In addition to the ore-sampling checks referred to, the plaintiff's check-books show two other checks of prior date, the one for $4,500, and the other for $1,700, to have been drawn in favor of the defendant. The one for $1,500 was shown to the defendant, and he recognized his signature, but did not remember the circumstance of giving it. He had no recollection of the $1,700 check. Medhurst handed the $7,000 note of the defendant to the company's book-keeper, telling him that it was not to be negotiated; that it was a personal matter, and he himself would attend to it. That was the last time, so far as the evidence discloses, that Medhurst saw the note. The book-keeper placed it in the company's safe, among company papers. Some private papers, also, of

Medhurst were in the safe. Some time after this Medhurst disappeared, and thereafter the company took possession of the safe and contents. This note of $7,000 sued on was found, among other papers, in the safe, and the plaintiff had it presented to the defendant for payment, and payment demanded. Payment was refused; the defendant claiming that it was a personal affair between Medhurst and himself, and without money consideration,

but given merely for the accommodation of Medhurst. The company then brought this action. Judgment was given, in the court below, for the defendant, and thereupon the plaintiff appealed to this court.

The first question for our consideration is as to who is the payee of the $7,000 note sued on. The plaintiff claims to be the payee, and the defendant claims that Medhurst individually is the payee. Upon the face of the note, it is made payable to "F. Medhurst, Commercial Director." The courts have sometimes held that, in such a case, an action may be maintained in the name of either the agent or the principal. If the transaction was known to be with the principal, but through the agent, it would be especially proper that the suit be in the name of the principal. But if the agent were acting apparently on his own behalf or responsibility, or as holding the property in trust, having given full security to his principal, as in case of a guardian who has given bond for the property intrusted to him, an action in the name of the agent would be proper, and the affix of the word "guardian" might be treated as descriptio person. The true rule evidently is that recognized by the supreme court of the United States in the case of Bank v. Bank, 5 Wheat., 326, namely, that where, on the face of the paper, circumstances appear from which it might reasonably be inferred that it was either a private paper or an official one, the matter being in doubt, extrinsic evidence was proper to remove the doubt. In that case the action was based upon a check dated at "the Mechanics' Bank of Alexandria, and the body of it read, "Cashier of the Bank of Columbia, pay to the order of P. H. Minor, Esq., ten thousand dollars, and signed "Wm. Patton, Jr." The Mechanics' Bank was sued on the check, and in defense set up that it was not the check of the defendant bank, but was the individual check of Patton. Parol evidence showed that Patton was the cashier of the defendant, and that Minor was its teller; that the check used was taken from a book of blank checks kept for use by the cashier in his official capacity; that the cashier had frequently used the blanks out of that check-book in his official transactions; that, in using these blanks officially, he signed them

with the words "Cas." or "Ca." added to his name, and that there was no other difference between those checks and the one in question in that action; that, although these checkbooks were intended for the use of the bank, yet the checks were sometimes used for other purposes; that, in the correspondence of the bank, the cashier generally added to his name some words designating his official capacity as cashier, but this was not always done, nor was it deemed indispensible, if from other circumstances the correspondence appeared to be official. The evidence showed that the cashier of the bank upon which it was drawn, considered the check to be the official check of Patton, as did also the cashier of the Branch Bank of the United States, through which it passed. Evidence was likewise introduced, in behalf of the Mechanics' Bank, to show that Patton, at the time he drew the check, declared that it was his private individual check, that he had funds in the Bank of Columbia to meet it, and that it was passed by him to the Mechanics' Bank as the individual check of Patton; and, further, that the Mechanics' Bank paid to Patton the amount of the check. The court, in referring to the character of the evidence introduced to show the check to have been an official and not a private transaction, said: "The evidence resorted to for this purpose was the most obvious and reasonable possible, namely, that this was the appropriate form of an official check; that it was in fact cut out of the official check-book of the bank, and noted on the margin; that the money was drawn in behalf of and applied to the use of the Mechanics' Bank; and by all the banks, and all the officers of the banks, through which it passed, recognized as an official transaction. It is true, it was in evidence that this check was credited to Patton's own account on the books of his bank; but it was done by his own order, and with the evidence before his eyes that it was officially drawn." So, in the case at bar, the fact that the defendant considered the note as private, and not official, and that it was so declared by Medhurst, counted as nothing when all the indicia of official character were given to the note by the defendant and by Medhurst. The note was drawn payable to "F. Medhurst, Commercial