#### Henry N. Stoltenberg, Defendant in Error, v. Mrs. Lena Johnson, Plaintiff in Error.

Gen. No. 15,723.

Statute of Frauds—when, no defense. If the evidence establishes a primary liability upon the part of the defendant, the Statute of Frauds constitutes no defense.

Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding. Heard in this court at the October term, 1909.

Affirmed.

Opinion filed October 5, 1911.

James F. Hutchison, for plaintiff in error.

Benjamin Wolf, for defendant in error.

Mr. Justice Smith

delivered the opinion of the court.

Thé defendant in error, hereinafter called plaintiff, had for collection for a client two notes executed by C. E. Wallace, a son-in-law of the plaintiff in error, hereinafter called the defendant. The plaintiff and defendant were old acquaintances and friends. Mr. Wallace was very‘ill. The notes were long past due and the plaintiff was insisting on their payment. The plaintiff and defendant had some talk about the notes, and the only question in the case was what was said in those conversations. The plaintiff claimed that he extended the notes, guaranteed them to his client, and afterwards paid them at the request and on the express agreement of the defendant that she would pay him; that she made a'payment of $58 at the time of the extension of the notes, but refused to pay the balance advanced and paid by him in payment of said notes on her promise and agreement to pay him, for *423which he brought this suit. The cause was submitted to the court without a jury. The court found for the plaintiff and entered judgment on the finding.

We think the preponderance of the evidence with the plaintiff and that the same showed- a primary liability on the part of the defendant,. and so not within the Statute of Frauds.

The judgment is affirmed.

Affirmed.