Plaintiff’s first six assignments of error may be all summed up in the proposition that the note sued on was void under *128the familiar rule announced in Newell v. Higgins, 55 Minn. 82 (56 N. W. 577,) that where a creditor, who signs a composition agreement with Ms debtor, by which to induce other creditors to sign it, makes a private bargain with the debtor, the effect of wMch is to place such creditor in a better position than the other creditors, he thereby commits a fraud upon them, and such private bargain is void. The trial court correctly instructed the jury to that effect, but left it to them to determine from the evidence whether this was a composition agreement between the creditors themselves as well as between the plaintiff and the defendant, or was an agreement between the plaintiff and defendant alone. We are of the opinion that under the evidence this was a question for the jury, and that their verdict, which is adverse to the defendant, is conclusive, and takes the case out of the rule invoked.

The remaining assignments of error go to the action of the court. . in1 refusing to grant a new trial on the ground of surprise and newly-discovered evidence. There is no merit in these assignments.

The only ground urged for a new trial was that defendant’s counsel misconstrued plaintiff’s reply as admitting that the agreement was a composition one between all the creditors, and therefore he did not introduce evidence which he would have done had he construed the pleading correctly. Order affirmed.

(Opinion published 59 N. W. 959.)

Application for reargument denied July 20, 1894