Tbe court directed a verdict against the defendants’ contention that the $75 and the check of A. L. Burgan & Co. were in fact received by the plaintiff in payment of the note. This conclusion of the trial court is sought to be sustained upon the ground that there is no evidence which would warrant the jury in finding that the cash and check were actually accepted by the plaintiff in payment of the note. It appears without dispute that the check of Bur-gan & Co., covering the amount due from Burgan & Co. to Braun, was given to McIntyre at Braun?s request on January 10, 1906; that McIntyre received it and the $75 in cash; that McIntyre indorsed the check and delivered it and the cash to the plaintiff bank to apply on the note; that the authorized officer of the bank received the cash and the check, stamped the note as paid, and delivered it to McIntyre; and that McIntyre retained it in his possession until some time in March. It also appears that the check was postdated twelve days, and that when, shortly after giving the note to McIntyre, the bank officer discovered that the cheek was so postdated, he instructed McIntyre to hold the note until the check was paid. The check was presented to the Oconto bank at about the time it bore date, and payment was refused because Burgan & Go. had no funds on deposit to meet the check; and they had none from the time the check was given to the time of its return. The plaintiff pressed for its collection through the Oconto bank and made no effort to collect on the note from the defendants until the following March, when it notified Harter and Braun that the check had not been paid and that it looked to them for payment of the note.

The question is: Does the evidence present a basis for an inference by the jury that the cash and the check were in fact received from McIntyre as payment of the note? If the plaintiff bank in fact so received the cash and check, then the defendants Harter and Braun, who appeal from the judgment, are released from all liability on the note. The facts *412and circumstances of the receipt of the cash and the check by the plaintiff hank, coupled with the conduct of its officers, after receipt of the cheek, in directing the Oconto hank not to protest the check for nonpayment and in allowing it to hold the check and press Burgan & Oo. to deposit funds to meet it, and plaintiff’s delay until March, when it learned of the failure of Burgan & Oo., before notifying Harter and Braun of the nonpayment of the check and demanding payment of the note from them, would have justified the jury in finding that plaintiff accepted the $75 and the check as payment of the note. Under the circumstances the direction of a verdict to the effect that no evidence of payment had been adduced was erroneous. The state of the evidence calls for submission to the jury of the question whether the plaintiff in fact accepted the cash and check from the defendants as payment of the note. Hence the judgment cannot be sustained.

By the Court. — Judgment reversed, and the cause remanded for a new trial.