I concur with Mr. Justice PATTERSON that there should be a new trial. The fourth allegation of the complaint *1035alleges that Carpenter “had procured the indorsement thereon [i. e, the note in suit] of the defendant George W. Roderick, who indorsed the said note for the purpose of giving credit to the maker with this plaintiff, the payee thereof, and the said note was delivered to the plaintiff so indorsed.” The only question is whether there was evidence to prove this allegation. Before considering the testimony, it is well to notice the form of the denial of this allegation. The allegation was as to the purpose for which the defendant Roderick indorsed the note. It was an allegation of fact particularly within the knowledge of Roderick, and this allegation in the complaint called for an answer by him as to the intent with which he indorsed the note. I think there is considerable doubt as to whether this allegation is denied at all. Having thus alleged the purpose of the indorsement, Roderick, in answer to that allegation of the complaint, says, “He denies that the defendant Alexander T. Carpenter procured the indorsement of said note mentioned in the amended complaint by this defendant for the purpose of giving credit to the maker with the plaintiff, the payee thereof.” It was not alleged that Carpenter had procured the indorsement for that purpose, and what Carpenter’s purpose was is entirely immaterial. The allegation was that Roderick had indorsed it for that purpose, and that allegation he does not specifically deny. I also think it doubtful whether this allegation of the complaint is denied by the seventh-paragraph of the answer, by which the defendant denies any knowledge, or information sufficient to form a belief, as to any of the allegations contained in said amended complaint not hereinbefore expressly admitted or denied.
If, however, the answer is sufficient to raise an issue as to the intent with which the defendant indorsed this note, I think that there was evidence sufficient to sustain a finding that Roderick indorsed this note for that purpose. The question is as to the purpose with which Roderick made the indorsement. To prove that purpose it is not necessary that there should be evidence of an express agreement. The note, as it stands, with the indorsement upon it, raises a presumption that the indorsement was intended to be subsequent to that of the payee. That presumption, however, is rebutted where it appears that the object of the indorsement was to give credit to the maker of the note with the payee. Where this intention appears,— and it is plain, I think, that it can be found from the acts of the parties at the time, and the circumstances surrounding the indorsement of the note,—then such an indorser becomes the first indorser, and is responsible to the payee. The question, therefore, is, did this defendant understand when he signed his name upon this note that the object was to give credit to the maker with the plaintiff? There is evidence that the plaintiff required the indorsement of the note by the defendant before he would give credit to the maker. Was there evidence from which the jury could find that the indorser understood this, and made the indorsement for that purpose? We must look for the evidence of such an intention in the circumstances existing at the time the note was indorsed, and the acts of the parties of which the defendant had knowledge. The evidence justified *1036a finding of the jury that the following facts were known to the defendant: That the maker and indorser of the note had been in partnership, and that during the continuance of such partnership, and on May 5,1894, a firm note had been given to the plaintiff, which was delivered by or in the presence of the defendant Roderick; that after this note was due the note in suit was presented to Roderick, which note was made by Carpenter, Roderick’s former partner, payable to the order of the plaintiff, but was not indorsed by the plaintiff; that Roderick indorsed that note in blank, and delivered it to Carpenter, and that at this time the firm had been dissolved; that Carpenter, the maker of the note, had taken the assets-of the firm, and had assumed the payment of its liabilities, Roderick thus standing in the relation of a surety for the payment of the debts of the firm. Roderick knowing these facts when he indorsed the note, there would be, I think, sufficient to justify an inference that the object of such indorsement was to give a credit to the maker of the note, so as to induce the plaintiff to accept it as an extension of the time of payment of the debt then due from himself and Carpenter to the plaintiff. By such an indorsement with such an intention, he simply continued the condition which had existed prior to that time. For what other purpose could he have indorsed the note? Certainly not for the plaintiff’s accommodation; for the note had not been delivered to the plaintiff, but was in the hands of Carpenter, and was not indorsed by the plaintiff. Assuming that the indorsement could be said to be an accommodation indorsement, for whose accommodation was it made? For the maker, who has in his possession an undelivered note drawn to the order of a person holding a note upon which both the maker and indorser are liable, or for tire payee of that note, who had not received it and had not in-' dorsed it? It seems to me that at least there was a question for the jury to say for what purpose this defendant indorsed the note, and, if it was for the purpose of giving credit to the drawer so as to secure an extension of the time of payment of an indebtedness for which the indorser was liable to the plaintiff, then the defendant was liable. I agree, therefore, that there should be a new trial.