delivered the opinion of the Court.
That the note given by Sceets alone, which matured three days before the other, was the principal note, the other being collateral thereto, and that the sum of $1,850 was advanced upon the security of the two notes, is evident.
Two questions of fact are in dispute: First, was there an extension of the note in suit; second, had Tolman or the bank any notice that either Stauber, Florus, Dixon or Stewart was a mere surety.
As to the second proposition, the only evidence that either Tolman or the bank was informed that the undertaking of the makers, other than Sceets, was that of sureties only, is the testimony of Sceets, before set forth, and a request to him, made by Tolman, to sign the following statement:
“ Chicago, March IQ, 1887.
D. H. Tolman, Esq., Pres.
Dear Sir : As some question has arisen on the matter of note guaranteed by W. P. Black, and by me pledged with your bank, I am willing to, and hereby certify that no agreement or arrangement has ever been made by you, or your bank, to extend payment on the collateral note guaranteed by Mr. Black, that you have heretofore extended payment on my principal note, but no arrangement has been made about the collateral note, and I now request a further extension of the principal note on same understanding.”
*611The burden of proof in this regard was upon the defendants; the testimony of Sceets is merely that Tolman looked up the parties in Bradstreet’s agency. Under the form of the question put to him, Sceets’ answer of “ Yes, sir,” is not an assertion of anything. That Tolman should have asked for the statement from Sceets is an implied admission only that a question had arisen on the matter of the note guaranteed by W. P. Black, and that he, Tolman, desired to have Mr. Sceets certify that no agreement or arrangement had been made to extend the time of payment on that note.
Mr. Sceets testifies that when Tolman asked him to sign this statement, he told him that he would take it under advisement, that he did so, and concluded not to sign it. Under the evidence presented in this case, we can hardly conclude that Mr. Sceets, if the matter contained in this paper was untrue, would have taken under consideration the subject of putting his name to a written declaration he knew to be false.
It is impossible for us to say that the request for this letter is evidence raising a prima, faaie presumption that Tolman or the bank knew that either of the defendants, who claim to have been mere sureties, were so.
The indorsement of the payment of §400 upon each of the notes was one which Sceets requested Tolman to make, saying that “ these people ” (Stauber, Floras, Dixon and Stewart) had paid him §400, and it ought to be credited on the note m ade by them. The bank did not claim to be entitled to the amount represented by the two notes, while it must have regarded the note with six names thereon as more valuable than that which was the obligation of Sceets alone.
That upon Sceets’ direction as to indorsement it should have marked in ink upon the note, the makers of which it was informed had paid the money it received, and also made a like indorsement in pencil upon the paper Sceets alone had signed, was a just and proper act, as by such payment all obligations of Sceets to it were reduced. We do not regard such indorsements, made as they were, as raising *612any presumption as to any of the facts in dispute in this case.
We do not wish to be understood as holding that the proposed statement by Sceets, or the facts concerning the indorsement of the $400 paid, were not admissible in evidence; we regard such evidence as insufficient to raise a presumption either that the note sued upon was the principal note, or that the bank had notice that either of the makers thereof was a mere surety.
The jury should not have been inferentially instructed that the extension of the note made by Sceets alone, operated as an extension of the note in suit, or that in the absence of notice by the bank that appellees were sureties, the extension of the note by them made, released them from their obligation.
The judgment of the Superior Court is reversed and the cause remanded.