delivered the opinion of the court.

The petition states that a note of six hundred dollars belonging to Charlotte Irma Latour, wife of J. U. Defau, was at the request of defendant placed in his hands to be discounted; but that the latter has not accounted for the proceeds (hereof, and refuses to return said note ; thus rendering himself liable to the owner aforesaid, for its full amount. The defendant avers, that a note similar to the one described in the petition was handed to him by J. U. Defau, with a request to have the same discounted at a loss of two hundred and sixteen dollars, with which defendant complied; that Defau was the owner of said note, and was indebted *275to him in the sum of two hundred and seventy dollars, which amount it was agreed should be paid out of the proceeds of the note, and for which he pleads compensation ; that as to the balance of one hundred and fourteen dollars, remaining after these deductions, he has always been ready and willing to pay the same, but that said Defau has refused to receive it. The plaintiffs had a judgment, from which the defendant has appealed.

The evidence shows conclusively that the note in question was the property of Charlotte Irma.Lalour, as having been received by her in part payment of some property of her’s which she had sold. The defendant has not been able to give any proof that he succeeded in the negotiation of the note entrusted to him; if he had, no sum due to him by Defau could have been set off against the claim of his wife as owner of this note. The judge below decided correctly, we think, in rejecting parole evidence of Defau’s consent to lose three per cent, per month on the note defendant had undertaken to have discounted; no negotiation having been proved, the note must be presumed to be yet in the defendant’s possession, and the interest exacted for his own account. He must then pay the amount of the note, or give up the note itself to the true owner. The appellees have prayed for damages for the frivolous appeal. We cannot perceive on what ground the appellant could have entertained a reasonable hope of success in this court. His object must have been delay.

It is, therefore, ordered, adjudged and decreed, that the judgment of the City Court be affirmed, with costs and ten per cent, damages.