On April 15, 1912, the note was transmitted from the Banking House of Meyer & Chapman, by letter of that date, reading as follows: "W. J. Deegan, Esq. "Cody, Wyo. "Dear Deegan: "I enclose herewith the Kimball note amounting to $4028.59 to this date. Trusting you will be able to relieve us of this old sore in the near future I am "Yours truly, "Alden." The receipt of the note was acknowledged by letter dated at Cody, April 19, 1912, and, like the others signed by Deegan, upon the stationery of the bank, reading as follows: "F. H. Alden, Esq., Cashier, "Meyer & Chapman Bank, "Red Lodge, Mont. "My dear Alden: "I am in receipt of your letter of the 15th inst., enclosing Kimball note. There has been another trifling delay in regard to the title to some of this ground, which will be cleaned up within a few days, when we will remit you the amount in question. * * * "Very truly yours, "W. J. Deegan." Although signing as assistant cashier all but one of the above letters bearing his signature, the evidence shows that Deegan became at least the acting cashier and the managing officer of the defendant bank in January, 1911, and it is conceded by the brief of appellants that "at the times mentioned in the petition", which includes the time of the correspondence aforesaid, "the evidence establishes" that said. Deegan was cashier of the defendant bank and manager of the defendant loan and trust company. It appears that the release was filed for record in the office of the County Clerk of Park County, of which county Cody is the county seat, on April 9, 1912, the receiving book of that office showing that it was received for record from W. J. Deegan. Said release was signed: "Meyer & Chapman, a co-partnership, by W. F. Meyer, one of the co-partners", and acknowledged by said Meyer as the voluntary act and deed of himself and of Meyer & Chapman, and was dated January 10, 1912. Prior to the trial the plaintiff had not been able upon inquiry and search at the bank to find the note or obtain any satisfactory account of it, but upon the trial it was produced by an officer of the bank upon a subpoena duces tecum who, as the testimony shows, had found it in a drawer of a desk which had been used by Mr. Deegan during his connection with the bank, and at the time in question in 1912 was in a room of the bank occupied by him and formerly by the cashier who immediately preceded him as the cashier and managing officer of the bank. When the note was produced at the trial it had upon its back the following endorsement: "Pay John Chapman or Order, sans recourse Meyer & Chapman by F. H. Alden." Upon the fact of that endorsement it is contended by the appellants that the partnership was shown thereby not to have been in possession of the note when it was transmitted for collection, but that it was the individual property of Chapman, and that, therefore, the plaintiff cannot recover in this action brought by him as surviving partner. There is no testimony directly explaining the endorsement. F. H. Alden, the cashier of the Meyer & Chapman Bank when the note left that bank, and the one who transmitted it, was asked as a witness by plaintiff's counsel if he could state how the endorsement got on the paper, but the question was withdrawn upon its being objected to, although the objection was overruled. That witness, however, testified that when he transmitted the note it was one of the bills receivable belonging to and in the possession of Meyer & ChapAnd Mr. Chapman testified that until the death of man. his partner, Meyer, the note and mortgage belonged to the partnership, and that it constituted part of the partnership assets at the time of Meyer's death, for which he, the plaintiff, was bound to account as surviving partner. It is admitted by the pleadings that pursuant to the law of Montana and an order of the proper court in that state said Chapman had given bond as surviving partner to close up and settle the partnership business. Upon this evidence it cannot be held that when the note was transmitted for collection it was the individual property of Chapman or in his possession independent of the partnership of Meyer & Chapman. If it might be inferred from the indorsement that at some time before sending the note to Cody there had been a transfer of the possession or ownership thereof to Chapman individually, the inference from the evidence would be equally strong that the partnership had again acquired the possession and become the holder thereof, and the indorsement might have been stricken out under the provision of the statute authorizing the holder of a negotiable instrument to strike out any indorsement not necessary to his title. (Comp. Stat. 1910, sec. 3206.) But the mere fact of the indorsement, the original payees having possession of the instrument, would not show either title or possession in the indorsee, for there is nothing in the case to show that the indorsement was completed by delivery. The negotiable instruments law provides that an instrument is negotiated when it is transferred from one person to another in such manner as to constitute the transferee the holder thereof; if payable to bearer it is negotiated by delivery; if payable to order, it is negotiated by the indorsement of the holder, completed by delivery. (Comp. Stat. 1910, sec. 3188.) And in defining the meaning of words used in the law it is further provided that "Indorsement" means an indorsement completed by delivery, and "Holder" means the payee or indorsee of a bill or note, who is in possession of it, or the bearer thereof. (Id. sec. 3349.) The note in question was payable to order. The testimony of Alden and Chapman as to the fact that the note was in the possession of, and one of the bills receivable belonging to the partnership is not to be regarded as stating a mere legal conclusion at variance with the note itself and the indorsement thereon, nor as an opinion or conclusion upon facts appearing in the case, but rather as stating a fact within the personal knowledge of the witness. (Pichler v. Reese, 171 N. Y. 577, 64 N. E. 441; Olson v. O'Connor, 9 N. D. 504, 84 N. W. 359, 81 Am. St. Rep. 595.) Chapman's testimony on the subject was not objected to, and although objections were interposed to the statement by Alden of the fact of possession and ownership, and overruled, and the court's ruling thereon was specified as error, the point as to the admissibility of the testimony is not discussed in the brief of appellants. But such testimony seems to come within the principle stated in Pichler v. Reese, supra, that witnesses may testify to facts, which are within their own knowledge, even though the facts are such as the jury is eventually to determine, there being a distinction between asking a witness to testify to a fact, the existence of which depends upon a collection of facts, or upon the construction of a written instrument, and asking him to testify to a fact, which is, necessarily, within his own knowledge. 3. The further contentions of counsel for appellants relate to the sufficiency of the evidence to sustain the judgment as against the defendant bank. The additional facts to be considered in disposing of these contentions, including testimony uncontradicted unless by the correspondence aforesaid or other documentary evidence, may be stated as follows: The directors and stockholders of the two defendant corporations of which Deegan was the managing officer as aforesaid, were practically the same, and their business was transacted in the same building and rooms, and at least one other of the employees was in the employ of both institutions. In the front or main room were two windows-so-called in the testimony-supposedly in the framework or fixtures separating the private from the public part of the room, one being used generally by the bank and the other by the trust company, and the vault and working space were used in common by the two institutions. Back of that was a private room used by Mr. Deegan, and in the rear of that a room described in the testimony as the abstract room of the defendant loan and trust company. The desk in which the note in question and certain other papers to be mentioned were found was, in 1912, in the private room used by Deegan. In that room Deegan transacted general banking business and also the business of the loan and trust company. The note was found with other papers in an envelope upon which was written, when found: "Kimball & Kimball," and underneath that, "Russell Kimball to Meyer & Chapman." Among the other papers was a bill or account of the Cody Trading Co. for $1498.96 against Kimball Brothers, including a note to that company for $880.31, signed by Farley Kimball and Russell Kimball, attached to the bill, a note of the same parties to E. E. Lonabaugh for a small amount, three notes to the Park Loan & Trust Co., signed by Russell Kimball and James P. Kimball, one for $500.00 and the other two for $475.00 each, one note for $785.00 to the same company, signed by Russell Kimball, and two slips of paper containing figures-one of them being evidently a computation of interest and the amount due on the Meyer & Chapman note on April 15, 1912, and the other, without date, a computation of the total amount due upon the several obligations aforesaid, including $4028.59, the computed amount due on the Meyer & Chapman note, showing a total of $7,719.60, and underneath that, but without adding them, the figures 188 indicating that amount in dollars. It further appears that on January 17, 1912, a mortgage release was filed for record releasing a mortgage of James P. Kimball to the defendant trust company, executed January 1, 1911, which release was delivered for filing by said W. J. Deegan. That on January 15, 1912, a mortgage was filed for record, which purported to have been executed on January 8, 1912, and acknowledged on the 13th of that |