As to the action of the court in overruling appellant’s motion to strike out a portion of respondent’s answer, it is sufficient to say that the defendants allege in their answer that the contract pleaded therein was executed at the same time the notes sued upon were, and as cotemporaneous with them, and if this were true, the contract and the notes in the hands *390of the Equitable Manufacturing Company should all be construed together, and if the contract and the actions of the parties thereunder should relieve defendants of liability upon the notes and the bank knew those facts as defendants allege it did at the time the note was endorsed to them then they were entitled to that defense against the plaintiff. The action of the court in overruling this motion was right, and that point must be ruled against the appellant.
As to the second assignment of error that the court erred in admitting oral testimony as to conversations between the salesman of the jewelry company and the respondents prior to the execution of the note, this was admitted for the purpose of showing that the execution of the contract and the note was procured by false and fraudulent representations of the agent of the Equitable Manufacturing Company with whom the defendants were dealing. As fraud was pleaded in the answer this was the only way to prove it, and this testimony was clearly admissible.
Under the third assignment of error it is contended that the court should have submitted the case to the jury upon proper instructions and permitted the jury to pass upon the facts as to whether or not, in the first instance, the execution of the contract and note was procured by fraud and whether the plaintiff was a holder of the note in good faith and for value. Iu this contention we think the appellant is right. While the court may have been strongly impressed by the testimony in this case with the view that this entire transaction was a fraudulent scheme perpetrated jointly by the Equitable Manufacturing Company and the plaintiff by which the Equitable Manufacturing Company would send out its agents, and by deception impose upon innocent and unskilled merchants by trickery and knavery, and secure their signature to negotiable notes, then transfer them.to this plaintiff, and plaintiff then bring suit on the notes, pose as an inno*391cent purchaser for value, force the payment of the notes, and leave the parties who had signed the notes with a lot of worthless jewelry upon their hands, and no recourse except to go to a foreign State and bring an action for damages against the parties who had swindled them in the first instance. While it may he true that the court felt that all these things were clearly shown by the testimony, yet notwithstanding that fact, the right of trial by jury is one of the sacred institutions of our law, and it is the-duty of the court to preserve it under all circumstances, and no matter how clear the testimony may be, or how strongly the court may be convinced that deception and fraud have been practiced and innocent people injured thereby, yet the law does not permit him to take from the jury the right of determining that matter. The law imposes this duty upon the jury and the jury can generally be depended upon to protect innocence when given an opportunity to do so. Under the circumstances developed in this case, the action of the court in peremptorily instructing the jury to find for the defendant was material error, and for that reason, the judgment of the court will be reversed and the cause remanded.'
All concur.