Opinion by

The evidence in this case is conflicting and but for one controlling fact it would be difficult to conclude on which side the preponderance was; the fact alluded to is the position of the name of Holbrook on the bill.

It is true the witnesses differ in their statements as to when it was placed there. Holbrook says it was some thirty days after the bill was made and delivered to him; that he placed his name on it to enable Dean to present it to the bank and receive payment, and he is to some extent corroborated by Cur-ran and others.

While Caldwell and Tuck state positively that Holbrook endorsed it before they did, Caldwell endorsing for Phelps, Caldwell & Co., and they are to some extent corroborated by Phelps. With the evidence thus equipoised the fact that Holbrook is the payee, and his name is just where it would be on the bill, first endorser, becomes important and must assert an influence in determining the liability o fthe parties. And in connection with that fact, we think the weight of the evidence sustains the conclusion of the court below, which, however, we would feel bound to sustain without that fact on the conflict which exists.

Wherefore the judgment is affirmed.