delivered the opinion of the court.
S. IT. Andrews sued Lena Kramer and Herman B. Kramer in the sum of $173.28 for money had and received by the defendants to and for the use of the plaintiff. It appeared from the evidence that one of the defendants, at the instance of the other, indorsed and sold to Andrews two checks aggregating $173.28, drawn at Boston, Mass., by IT. W. Wadleigh on the North National Bank, and payable to the order of H. IT. Kramer; these two checks were cashed by Andrews for the defendant, IT. B. Kramer, who presented them for that purpose at the instance of the other defendant, Mrs. Lena Kramer, and when Andrews cashed said checks, said IT. B. Kramer indorsed the name of H. IT. Kramer thereon and delivered them to Andrews. Afterwards IT. H. Kramer claimed these checks to have been his property, and sued Andrews for appropriating them to his use, and obtained a judgment of recovery therefor. Thereupon Andrews paid II. II. Kramer the value of the checks, and brought the present suit to recover of the defendants the money he had paid them for said checks.
On the trial of the case in the circuit court the evidence of II. H. Kramer and others disclosed the facts that the two checks were drawn by IT. W. Wadleigh, a Boston customer of IT. H. Kramer, who operated a tannery near Enterprise, Mississippi, in payment of two shipments of leather made to Wadleigh by II. II. Kramer; that these two checks came to the hands of the defendants, H. B. and Lena Kramer, and that Andrews, for accommodation, cashed the checks for IT. B. Kramer at the instance of Mrs. Lena Kramer, and that IT. B. Kramer indorsed the payee’s name on said cheeks and delivered them so indorsed to Andrews, and that the money paid by Andrews to IT. B. *154Kramer came to the hands of .Mrs. Lena Kramer, who appropriated the same to her own use. Besides the evidence, the substance of which is above recited, the plaintiff offered a book, not identified, purporting to be the docket of H. K. Ward, a justice of the peace, containing a judgment for the sum of said checks and the proceedings leading thereto in favor of LI. H. Kramer, and against S. H. Andrews. The evidence was heard by the court, but all of it was excluded from the jury, and they were instructed to find for the defendants.
The indorsement of the checks by II. B. Kramer, at the instance of Lena Kramer, was an undertaking by them to Andrews that they were authorized to indorse said checks; they thereby guaranteed or warranted to Andrews a title to the checks, and Andrews, in seeking to recover the money paid them on said checks, is merely calling on them to make good their guaranty.
The judgment proceedings before Justice Ward, between II. H. Kramer and S. JET. Andrews, are as to the present defendants res inter alios acta, and apart from any evidence that the book was the official record of Justice Ward, were inadmissible in evidence, but the plaintiff had offered abundant evidence to go to the jury, and the exclusion of his evidence by the court •was error.
Reversed and remanded.