In his petition for a rehearing appellant, with other matters, presses upon the attention of the court the fact that in the judgment given against him he is charged with the sum of $2,591.96, being the amount of a note for two thousand dollars, with interest, executed by one Anderson to plaintiff and by plaintiff deposited as collateral security for his indebtedness to the bank, the payment of which indebtedness defendant had assumed. Petitioner, moreover, shows that there is a direct conflict in the evidence between Swan, the payee, and Anderson, the maker of the note, Swan testifying that it was a note given by Anderson in payment of moneys which plaintiff had from time to time loaned to him, *Page 148 Anderson testifying that it was a mere accommodation note given to Swan to assist him in borrowing money. There is no evidence touching the responsibility of the maker of the note, nor of its value. Under these circumstances, it was inequitable to charge Talbot with the amount of the note and accrued interest. The judgment against Talbot should therefore be modified by subtracting therefrom the amount of the Anderson note with accrued interest.
The judgment heretofore given by this court is set aside, and the following judgment given:
It is ordered that the court below modify the judgment heretofore given by subtracting from the judgment against Talbot the amount of the Anderson note with accrued interest, and that when so modified, the judgment shall stand affirmed. The order denying a new trial is affirmed. Appellant shall recover his costs on this appeal.