It seems to be conceded that the plaintiff was in the habit of taking notes from his customers in different parts of the country; that he did his banking business with the defendants from 18Y2 to February 25, 1884; that during that time he had frequently obtained credit with the defendants on his account or individual note, leaving with them the notes so taken from his customers as collateral.
The testimony on the part of the plaintiff tends to show that in February, 1884, he borrowed of them $600, and gave them his individual note therefor, together with the notes mentioned in the complaint as collateral security, upon the agreement that those notes should be returned on the payment of his individual note; that his individual note had been paid, and the notes so left as collateral demanded and refused before the commencement of this action. The testimony on the part of the plaintiff further tends to prove that the defendants were in the habit of discounting notes taken by the plaintiff in his business and then indorsed by him and left with the defendants, and that in all cases where any such notes so indorsed were unpaid, the defendants were to protest the same, or cause the same to be protested, and when so protested and not paid by the makers, the plaintiff would pay the amount or allow it to be charged up to his *336account. The plaintiff also testified: “ Mr. Houghton before tbis might have told me Wagner (a maker of one of tbe three notes) was slow, but I told him to protest the notes and send them right back; but I left collaterals always, $5,000 or $6,000,— if any of them failed or I failed.”
There was evidence on the part of the defendants, tending to prove that during the time named the plaintiff did business with them under an agreement that for all notes they discounted for him he was to keep other notes as collateral for their payment, in case they were not paid; that the defendants should protest or cause to be protested, when they could do so, the notes discounted or left with them, but should not be responsible for the protest of any of the notes so discounted or left as collateral; that they could not undertake to have the notes protested, as some banks did not know enough to do it; that among the notes so discounted were three given in 1881-82, described in the answer, amounting in the aggregate to $603.99 and interest; that neither of those notes were protested by the banks to which the defendants had sent them for collection and protest ; that the defendants had made efforts to collect those three notes at the instance and for the accommodation and benefit of the plaintiff; that the plaintiff kept in the hands of the defendants all the time collaterals for the payment of each of the three notes so discounted; that as any of such collaterals were paid from time to time the plaintiff brought to the defendants new collaterals in their places; that the eleven notes mentioned in the complaint were left by the plaintiff, and were to remain as collateral for any indebtedness he owed to the defendants; that when they were deposited by the plaintiff, he mentioned that they should be held as collateral security for the three discounted notes set forth in the answer; that such collaterals were to remain with the defendants until the suits brought to collect the three discounted notes should be decided, and if *337against tbe plaintiff, then the defendants could take the amount of such three notes out of such collaterals; that the. collaterals which the plaintiff had at the bank were left there to secure other notes than were discounted from time to time; that the plaintiff occasionally gave his notes, and these notes as collaterals; that all the notes were held by defendants as collateral for any individual note which might be given by the plaintiff, or any note which the defendants discounted in the country; that the plaintiff gave the $600 note at the time the eleven notes were left.
The jury were at liberty to believe the evidence given on the part of the plaintiff, or the evidence given on the part of the defendants. They chose to believe the latter. We think it is sufficient to sustain the verdict.
The agreement in relation to the risk of protesting notes not paid and the collection of them and keeping 'collaterals was clearly not within the statute of frauds. Counsel does not seriously contend that it was.
The charge of the court is criticised by counsel as “ peculiarly unintelligible and mystifying to the jury.” But we are constrained to think it substantially embodies all the requests to charge made by counsel, and in effect fairly submits the material questions of faet upon whieh the parties were at variance. We deem it unnecessary to go into any analysis of the charge.
By the Court. — The judgment of the county court is affirmed.