Action to recover upon a promissory note made by the defendants C. A. Heins and Warren H. Heins to the defendant C. A. Kuske and by the latter indorsed to the plaintiff E. G. Heins. There was a verdict against the defendant Kuske and in favor of the defendants Heins. Kuske appeals from the order denying Ms alternative motion for judgment notwithstanding the verdict or a new trial.

The note was for $2,080, was dated July 1, 1909, and was due five years after date. In 1912 Kuske for a consideration indorsed it to the plaintiff. It was never paid. Notice of nonpayment was not given to Kuske. He is bound if at all by the guaranty and waiver which is written above Ms indorsement. The plaintiff claims that it was put there before delievry. Kuske claims it was not put there until afterwards. That was his defense. The issue was one for the jury upon disputed evidence and the verdict ends the controversy.

The defense of the two Heins was that the note was given as boot money in exchange of a hotel property owned by them in Renville *106for property in Wisconsin either owned or controlled by Kuske. The plaintiff and Kuske were engaged as partners in selling real estate. The two Heins claim that the character of the Wisconsin land was fraudulently misrepresented to them and that by the fraud they were damaged in an amount exceeding the $2,080 boot money note. If the defense was good against Kuske it was good against plaintiff for they constituted a partnership and the partnership was concerned in the exchange. The evidence was sufficient to sustain a finding of fraud and the verdict for the two Heins is sustained.

The only defense interposed by Kuske was that he did not guarantee the note nor waive notice of nonpayment. The only defense interposed by the two Heins is that stated. The case was tried and the two issues were submitted to the jury without objection. Nothing was litigated between the plaintiff and Kuske as to the rights between themselves if the note to the latter was induced by fraud.

Order affirmed.