(dissenting). I am unable to agree with the conclusion to which the majority of the court have arrived in this case. In my opinion the testimony and the circumstances surrounding the transaction are consistent with but one view as to the purpose for which the note in controversy was given, and that was the securing to the respondent the repayment of the sum of five thousand dollars to be advanced by it as the cash payment to Mackintosh on the purchase of his abstract. Such- having been the purpose for which the note was executed, it seems clear that it was never received by said Mackintosh as security for such cash payment in such a manner that he became the owner of the note. His holding of the note was in my opinion only a temporary expedient pending the completion of the organization of the respondent, for whose use the note was originally made, and that it was the understanding of all the parties interested in the note that it should pass to the respondent as security for the five thousand dollars which was-to be paid to Mackintosh as soon as it was so organ*148ized that it could furnish the money. That such was the nature of the transaction is, perhaps, not shown by any direct positive proof to that effect, but the circumstances taken separately and together are so consistent with this construction of the transaction, and so inconsistent with any other construction, that my mind is satisfied. There is no reason whatever shown why this note was drawn for the time that it was which is consistent with any other theory, nor is there any other theory which will account for the fact that it was made payable at the First National Bank. If the understanding at the time it was executed was that it was to go to Mackintosh as his property, there would have been every reason why it should have been made payable at his banking house, and none whatever for its being made payable at the banking house of the respondent. Beside, the entry in the books of Mackintosh, and the memorandum made by him on the back of the note, are inconsistent with the theory that he had taken the note in the ordinary course of business, and as his property, but are entirely consistent with the theory above suggested that it was left with him until the respondent was in a condition to advance the money and receive the note as security theréfor, in accordance with the original understanding between George W. Harris and the other makers of the note. If the above correctly interprets the original transaction, it must follow that when the note came into the possession of the respondent it became its property for the purpose of securing to it the payment of the amount therein named by the makers, and, if this was so, there is only one reasonable interpretation as to the nature of the transaction by which the first note of Wheeler and Harris to the respondent was made, and that is that it was so made simply for the purpose of enabling the bank to make a better showing as to the nature of the paper which it held so far as the time of payment was con*149cerned. There would be no reason whatever in its being made as collateral security to the other note, for the reason that both of the makers thereof were already bound to the bank by their signatures to the original note, nor would there be any reason for its being made as the principal note evidencing the debt for the same reason, and for the further reason that it would not be business for the bank, having security for such debt in the shape of the signatures of five persons to a note, to take another signed by only two of the persons so signing the principal note, and hold such principal note as collateral thereto. If such was the nature of the transaction when the first note of Wheeler and Harris was executed to the bank, it is but reasonable to suppose that all the notes executed in renewal thereof were of the same nature, and that none of them at any time became the principal security for the debt, or in any manner represented the same.
It follows that the course of dealing in relation thereto was purely a matter of convenience as between the respondent and said Wheeler and Harris, and that the debt or principal note held as security therefor was in no manner affected by such transactions. With this view of the facts, the instructions of the court to the jury were substantially correct, and its findings amply warranted by the proofs, and, in my opinion, the judgment rendered thereon should be affirmed.