(dissenting). Defendant Simon Westby appeals from a judgment against him on a promissory note. The defense is a counterclaim based on an alleged conversion of twenty shares of bank stock *301which was collateral security. Hence, the burden of proof is on the defendant.
On November 20, 1914, defendant for value received made to plaintiff a promissory note for $2,320.64, with interest at 8 per cent. There is no claim that the note has been paid. It was given in renewal of a debt secured by prior notes. The debt was secured by twenty shares of stock in the Citizens National Bank of Alexander, North Dakota, which stock was in the name of A. J. Stafne. As the trial court found the bank of Alexander became insolvent, went into the hands of the bank examiner, who demanded that A. J. Stafne transfer said twenty shares of capital stock to his father, Eric Stafne. Accordingly, on November 28, 1913, at Williston, with the assent or at the request of Simon Westby, the plaintiff delivered ■ said twenty shares of stock to A. J. Stafne. He was then the vice president of the Williston State Bank and defendant was the president. The stock was delivered to Stafne that he might take the same to the Bank of Alexander, as reorganized for renewal, replace the same by renewal stock. But Stafne failed to return to the plaintiff bank any renewal stock, and thus it was left without the collateral, which was really worthless; and, with full knowledge of the facts, the defendant made the said renewal note in suit, on which the plaintiff has never received a penny. That is all there is of the case.
The findings and the judgment are clearly right, and it should be affirmed.