text:
    A. Magnus Sons Company, Appellee, v. Atlantic Brewing Company, Appellant.
    Gen. No. 21,309.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Richabd E. Btjbke, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed June 19, 1916.
    Statement of the Case.
    Action hy A. Magnus Sons Company, a corporation, plaintiff, against Atlantic Brewing Company, a corporation, defendant, to recover the contract price of certain machinery and a sum due on open account. From a judgment for plaintiff, defendant appeals.

      Abstract of the Decision.
    1. Sales, § 329

      —when evidence sufficient to show that machinery not defective and compliance with contract as to installation and instruction. In an action to recover the contract price of a gas collecting and carbonating system which was to be installed by the seller, the seller also agreeing to instruct the purchaser in the operation of the system, where it appeared that owing to the delay of the purchaser to furnish proper tanks no attempt was made to install the machinery until nearly a year after the purchase, when the purchaser informed the seller that the gas compressor, which had been placed in a damp basement, leaked and that the seller would have to take the machinery back, evidence held sufficient to sustain a finding that the gas compressor was not defective, but that the leak was due to the machinery being kept in a damp basement, that the seller had complied with its contract to furnish an expert to install the system and to give instructions as to its use, and that the purchaser, by his own acts, had prevented the seller from installing the system so that a test could be made as provided by the contract.
    2. Appeal and erbob, § 1526*—when giving of improper instructions not prejudicial error. The giving of improper instructions is not prejudicial error where the jury could not have returned any other verdict than the one they did.
    James J. Kelly, for appellant; John A. Burke and John T. Fitzgerald, of counsel.
    Frank T. Murray, for appellee.

      See Illinois Notes Digest, Vols. XI to XV," and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Pam

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Presiding Justice Pam

license: Public Domain

text:
    James Rose by Clara Bilow, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 21,364.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Street railroads, § 111

      —when burden of proof on plaintiff to show freedom from contributory negligence. The burden of proof is on the plaintiff, in an action against a street railroad for damages for injuries alleged to have been negligently inflicted, to show his freedom from contributory negligence.
    2. Street railroads, § 131*—when evidence sufficient to show contributory negligence in attempting to cross trades. In an action against a street railroad company for damages for personal injuries to plaintiff as a result of being struck by an eastbound car as he was about to cross the tracks, evidence held sufficient to show that plaintiff could have seen the eastbound car at the last time he claimed to have looked if he had in fact looked, and to overcome his uncontradicted testimony that he looked at such, time.

      Appeal from the Circuit Court of Cook county; the Hon. John P. McGoorty, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Reversed and remanded.
    Opinion filed June 19, 1916.
    Statement of the Case.
    Action by James Bose, a minor, by Clara Bilow, Ms next friend, plaintiff, against CMcago City Bailway Company, defendant, to recover damages for personal injuries sustained as a result of being struck by one of defendant’s cars. Prom a judgment for plaintiff for $8,000, defendant appeals.
    John E. Kehoe and Charles LeBoy Brown, for appellant; John B. Guilliams, of counsel.
    J. K. McMahon, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section .number.

      See Illinois Notes Digest, Vols. XI to XV, and, (luniulative Quarterly, same topic and section number.

   Mr. Presiding Justice Pam

delivered tffe opinion of the court.

3. Witnesses, § 311 —when testimony of interested witness will not he accepted. The testimony of an interested witness as to facts inherently unprobable need not be accepted by a court or jury, although such testimony is not contradicted by other direct testimony in the case, and although the witness is not otherwise impeached.

4. Trial, § 125*—right of counsel to state to fury their views as to the law. .Counsel may properly state to the jury what they believe to be the law and base arguments thereupon.


text:
    Sidney C. Eastman, Trustee, Complainant, v. George S. Dole et al., Defendants. Frances E. Dole Leman, Intervening Petitioner, v. Sidney C. Eastman, Trustee, Respondent. On appeal of Sidney C. Eastman, Trustee, Appellant.
    Gen. No. 22,050.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Appeal dismissed.
    Opinion filed June 19, 1916.
    Statement of the Case.
    Bill by Sidney C. Eastman, trustee under the last will and testament of James H. Dole, deceased, complainant, against George S. Dole, Charles E. Dole, Frances E. Dole Leman and others, defendants, to be relieved of his duties as trustee'; and intervening petition by Frances E. Dole Leman to compel complainant to pay petitioner her share of the income of the trust which she claimed she was entitled to under the will. From an order directing such trustee to pay petitioner $5,000, complainant appeals.
    A motion was made to dismiss the appeal, for the reason that the order sought to be reviewed was an interlocutory one, and that therefore the court was without jurisdiction.
    The order in question, after setting forth the parties, provided as follows:
    “It is ordered that Sidney C. Eastman, as such trustee, etc., pay to solicitor for said Frances E. Dole Leman, from the funds of said trust estate in his hands as such trustee, etc., the sum of Five Thousand Dollars ($5,000) upon said Frances E. Dole Leman giving a bond in the sum of Five Thousand Dollars ($5,000) with surety, to be approved by the court, to said Sidney C. Eastman, trustee, etc., to refund said Five Thousand Dollars ($5,000) or any portion thereof to said Sidney C. Eastman, trustee, etc., or to his successor in the trust, or as may be ordered by the court, in the event that it shall be determined at any time hereafter by order of court that said Five Thousand Dollars ($5,000) or any portion thereof shall not belong to or be due to said Frances E. Dole Leman in the adjustment of all the rights and equities between said Frances E. Dole Leman, Sidney C. Ea'stman, as such trustee, etc., George S. Dole and Julia D. Hurlbut, said payment to be without prejudice to and subject to any and all claims of said Sidney O. Eastman, as such trustee, etc., and of any and all other parties to said cause and to the rights of all parties to said cause.
    “The bond of said Frances E. Dole Leman, with Henry W. Leman, as surety, for Five Thousand Dollars ($5,000) is now presented in open court and is hereby approved and ordered filed in said cause.”
    Chytraus, Healy & Frost, Carl V. Wisner and John Peter Barnes, for appellant.
    Henry W. Leman, for petitioner and appellee; Frank H. Culver, of counsel.

      Abstract of the Decision.
    1. Appeal and error, § 267

      —when appeal or error lies. There must be a final order or decree in a chancery suit, or a final judgment in an action at law, to justify an appeal or writ of error.
    2. Appeal and error, § 269*—what is a final judgment. A final judgment is one that finally disposes of tSe rights of the parties, either upon the entire controversy or upon some definite and separate branch thereof.
    3. Appeal and error, § 281*—when order directing payment of money interlocutory. An order in favor of an intervening petitioner in an action by a trustee under a will to be relieved from his duties as such, requiring such trustee to pay the petitioner a certain sum of money upon the petitioner giving a bond in an equal amount to refund such sum or any portion thereof in the event that it shall be afterwards determined that such petitioner is not entitled to such sum or any portion thereof in the adjustment of all the rights and equities between the parties, is interlocutory and not appealable.
    4. Appeal and error, § 1716*—when right to dismissal of appeal not waived by joinder in error. The right to the dismissal of an appeal from an interlocutory order is not waived by joinder in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Pam

delivered the opinion of the court.


author: Mr. Justice Goodwin

text:
    Polish National Alliance of the U. S. A., Appellant, v. Henry Paurowicz, et al., Appellees.
    Gen. No. 21,288.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Fraternal and mutual benefit societies, § 4

      —when taking of second mortgage by fraternal beneficiary society not illegal. A second mortgage given to secure advances made after the execution of a first mortgage to a fraternal beneficiary society constitutes a first lien on the real estate and is a permissible investment within Hurd’s Rev. St. ch. 73, secs. 272A, 272B (J. & A. n 6663, 6664). ■
    2. Corporations, § 346*—when defense of ultra vires unavailable in action by. Where a'mortgagor receives money under a second mortgage given to a fraternal beneficiary society and subsequently incumbrances in favor of other persons are made with notice of the lien, the plea of ultra vires is unavailable.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Reversed and remanded with directions.
    Opinion filed June 19, 1916.
    Statement of the Case.
    Bill by Polish National Alliance of the U. S. A., complainant, against Henry Paurowicz and others, defendants, to foreclose two mortgages on a certain piece of real estate, one made to secure a loan of a certain sum, and the other an additional advance. From a judgment for defendants, complainant appeals.
    Smietanka, Johnson & Molthrop, for appellant; Charles P. Molthrop, of counsel.
    No appearance for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Goodwin

delivered the opinion of the court.


text:
    Annie Kitz, Executrix, Appellee, v. Scudder Syrup Company, Appellant.
    Gen. No. 21,307.
    (Not to Tt>e reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. William E. Devbb, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Reversed and remanded.
    Opinion filed June 19, 1916.
    Rehearing allowed and additional opinion filed July 17, 1916.
    Statement of the Case.
    Action by Annie Kitz, executrix of the estate of Jacob Kitz, deceased, plaintiff, against Scudder Syrup Company, a corporation, defendant, to recover for the negligent death of plaintiff’s husband. From a judgment for plaintiff for $4,500, defendant appeals.
    A servant of the defendant took its delivery car from its place of business at 154 West Erie street, some time after business hours, picked up a Miss Lewis on La Salle avenue near the park, and, while driving west on Wellington street across Lincoln street, struck the Ford car which plaintiff’s testate was driving.
    The suit was originally brought against the defendant and its driver, but at the close of plaintiff’s case it was dismissed as to the latter on plaintiff’s motion. Defendant called the driver to prove the facts and circumstances connected with the accident, and at the close of his testimony, in chief, asked the following question: “Where were you going on that trip?” to which the driver responded: “Why, it was a brand new machine and I was out for a little advertisement; the boss always would say ‘take it out.’ It was a warm evening and I was taking a little spin. ” This witness testified further on cross-examination as follows:
    Q. “Where did you get that license, who furnished it?” A. “Scudder Syrup Company bought it for me. They thought it would be a good piece of advertising. ’ ’
    Abstract of tlie Decision.
    1. Witnesses, § 93

      —how statute relative to testimony of party in interest against representative of estate of deceased person construed. Hurd’s Rev. St. ch. 51, sec. 2" (J. & A. 1f 5519), relative to the testimony of a party to a civil action or a person directly interested against the representative of a deceased person, should he construed according to its spirit and not literally or technically.
    2. Witnesses, § 140*—when testimony of witness is in hehalf of a representative of deceased person. In an action by the executrix of a deceased person against a corporation, the owner of a delivery automobile, for damages for negligent death of testate due to the negligent driving, of the car after business hours, by a servant where the chauffeur on his direct examination, as a witness for the defendant and in response to a question as to where he was going on the trip, volunteered the statement that he had been instructed to take out the machine for advertising purposes, and he was cross-examined further regarding this conversation by the plaintiff, held that the testimony of the witness as to the alleged conversation, both the volunteered statement and those brought out on cross-examination, constituted testimony of a witness in behalf of the executrix, within Hurd’s Rev. St ch. 51, sec. 2, subd. 4 [J. & A. If 5519 (4) ], so as to render admissible the evidence of the officer of defendant, with whom the conversation was held, as to such conversation.

      Q. “When you say a good piece of advertising what do you mean by that?” A. “Well, Mr. Scudder would always talk about the machine standing in there. 'If you have any time,’ he said, 'take it out and keep it ont on the road. It is good advertising. ’ It was lettered up nicely advertising the Scudder Syrup Company. The car was brand new, in fine condition. If it was not, I would not have taken it out. ’ ’
    Q. ‘' That is what you were doing that night, for the purpose of advertising?” A. “Yes, sir.”
    Q. “At the request of Mr. Scudder?” A. “Yes.”
    Scudder was afterwards put on the stand with the evident purpose of denying this conversation, but as he was financially interested in the company, the court excluded his testimony.
    William E. T. Ewen, for appellant; Lannen & Hickey, of counsel.
    C. Helmer Johnson, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number^

   Mr. Justice Goodwin

delivered the opinion of the court.

3. Witnesses, § 286 —when party may introduce evidence contradictory to testimony of his own witnesses. While a party may not discredit his own witness by general evidence, he is not precluded from putting in evidence contrary to the testimony of one of his own witnesses even though the incidental effect of such testimony is to impeach or discredit a witness already examined in his behalf.

On Rehearing.

Automobiles and garages, § 3*—when evidence sufficient to sustain finding that driver of automobile not using automobile on master's business. In an action for the negligent death of a person alleged to have been caused by an automobile driven after business hours by a servant of the owner, evidence held sufficient to sustain a finding that the driver was not using the automobile on his master’s business at the time of the accident.


text:
    Louis Weinberger, Appellee, v. Marshall Field & Company, Appellant.
    Gen. No. 21,320.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Roads and bridges, § 239

      —when evidence sufficient to sustain,, finding that driver of wagon guilty of negligence in injuring pros

      pective street car passenger. In an action for damages for personal injuries alleged to be due to defendant running over the heel of plaintiff with the left rear wheel of its wagon while plaintiff was facing and about to enter a pay-as-you-enter street ear at a street intersection, where it appeared that there was nothing to prevent the driver of defendant’s wagon from seeing plaintiff in time to avoid striking him, evidence held sufficient to sustain a finding that defendant was guilty of negligence.

      Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed June 19, 1916.
    Rehearing denied July 5, 1916.
    Statement of the Case.
    Action by Louis Weinberger, plaintiff, against Marshall Field & Company, defendant, to recover damages for personal injuries as a result of being struck by the left rear wheel of defendant’s wagon. From a judgment for plaintiff, defendant appeals.
    While plaintiff was standing at the step of a Clark street; southbound, pay-as-you-enter car, at the southwest corner of Clark and Washington streets, which was then the terminal of the line, waiting for the conductor to let him aboard, the left rear wheel of a one-horse wagon belonging to defendant ran over his heel. Plaintiff, at the time of the accident, was facing and about to board the car in question.
    Frank P. Leffingwell and Egbert J. Folonie, for appellant.
    MoEwen, Weissenbach & Shrimski, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Goodwin

delivered the opinion of the court.

2. Roads and bridges, § 239 —when evidence sufficient to sustain finding that prospective street car passenger struck by wagon not guilty of contributory negligence. In an action for damages for personal injuries alleged to be due to defendant running over the heel of plaintiff with the left rear wheel of its wagon while plaintiff was facing and about to enter a pay-as-you-enter street car at a street intersection, evidence held sufficient to sustain a finding that plaintiff was not guilty of contributory negligence.


text:
    Al. V. Booth, trading as Al. V. Booth & Company, Appellee, v. R. W. Hartwig, Appellant.
    Gen. No. 22,413.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Appeal dismissed.
    Opinion filed June 19, 1916.
    Statement of the Case.
    Action by Al. V. Booth, trading as Al. V. Booth & Company, plaintiff, against R. W. Hartwig, defendant. After a judgment for plaintiff and appeal by defendant, plaintiff filed a motion to dismiss the appeal bond.
    Charles J. Traihor and E. H. Morris, for appellant.
    George D. Smith, for appellee.

      Abstract of the Decision.
    Appeal and error, § 671

      —when court loses jurisdiction to extend time to file appeal bond. When the time for filing an appeal bond has expired without any extension of time during the term, or within the time originally allowed, the trial court loses jurisdiction to extend the time.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Goodwin

delivered the opinion of the court.


author: Mr. Justice O’Connor Mr. Justice Goodwin

text:
    Henry H. Walker, Appellee, v. Chicago, Madison & Northern Railroad Company, Chauncey J. Jones and John Boomer, Executors and Trustees under the Last Will and Testament of Nelson A. Steele, Deceased, Appellants.
    Gen. No. 20,926.
    1. Mortgages, § 497*—when presumed that purchasers of property received benefit of amount of note secured by trust deed being foreclosed. Where a surety on a note secured by a trust deed purchased such note and trust deed and obtained an assignment of the right to maintain pending foreclosure proceedings, held, on a supplemental bill to foreclose the trust deed, that as defendants, who had obtained their titles to the premises through various sheriff’s deeds, bankruptcy proceedings and tax titles, had obtained these -titles long after the trust deed was placed of record it must be presumed that they, in every instance, except as to the tax deeds, got the benefit of the amount of the note.
    2. Principal and surety, § 83*—what is extent of liability of purchasers of property to surety purchasing note and trust deed. Where property is purchased with knowledge that a note secured by trust deed, from personal liability on which the principal and surety have been discharged in bankruptcy, still remains unsatisfied in part, such purchasers are liable for the balance due under the note and trust deed, to the surety who purchases the note and trust deed from the owners and secures an assignment authorizing the carrying on of pending foreclosure proceedings, although the surety had already received more than he paid for the note.

      3. Equity, § 262

      —when distinction between supplemental bill and original bill in nature of supplemental bill disregarded. The distinction between supplemental bills and original bills in the nature of supplemental bills is purely technical and may be disregarded.
    4. Limitation of actions, § 56*—when filing of supplemental bill in action to foreclose trust deed not commencement of new suit. Where a suit to foreclose a trust deed is pending and the surety on the note purchases the note and trust deed and obtains an assignment of the right to maintain foreclosure proceedings, the filing by the surety of a supplemental bill does not constitute the commencement of a new suit where no new parties or new interests are brought into the suit, which is barred by the statute of limitations.
    5. Mortgages, § 400*—when surety purchasing note and trust deed not precluded from asserting claim to portion of premises. A surety on a note secured by a trust deed who purchases the note and trust deed and procures an assignment of the right to maintain foreclosure proceedings is not precluded from claiming any interest in a certain portion of the property upon filing a supplemental bill for foreclosure of the trust deed because of the fact that prior to such purchase and assignment he failed to assert his claim thereto in a proceeding to foreclose a mortgage given to another person, where the mortgage which he purchased was a prior lien and the owners thereof were not made parties, and the surety was made party only for the reason that he had made another mortgage which the bill sought to set aside, and the surety was defaulted four years before he purchased the note and trust deed.
    6. Mortgages, § 400*—when surety purchasing note and trust deed not estopped to assert claim by failure to appear in burnt record proceeding. A surety on a note secured by a trust deed who purchases the note and trust deed and procures an assignment of the right of foreclosure is not precluded from claiming any interest in a portion of the premises, upon filing a supplemental bill for foreclosure of the trust deed, by reason of his failure in a so-called burnt record proceeding as complainant to present the claim sought to be enforced in the foreclosure proceedings, where the bill in the burnt record proceedings expressly alleged that the trust deed was a prior lien to the rights involved in that case, and this was admitted by demurrer.
    7. Equity, § 431*—when findings of master conclusive. The findings of a master are conclusive where no objections or exceptions are filed to such findings.
    8. Appeal and error, § 395

      —when objections to findings of mas

      ter cannot be raised. Objections to the findings of a master cannot he raised for the first time on appeal.
    9. Mortgages—when validity of adverse claim of title may not be determined in suit to foreclose. The validity of an adverse claim of title which is paramount to that of the holder of a trust deed cannot be considered and determined in a suit to foreclose the trust deed.
    Goodwin, J., dissenting.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed June 19, 1916.
    Rehearing denied July 14, 1916.
    Calhoun, Lyeord & Sheean. and John Gr. Drennan, for appellant Chicago, M. & 1ST. E. Co.
    John J. Herrick, William J. Herrick and Herbert Pope, for appellants Channcey J. Jones et al.
    Wilson, Moore & McIlvaine, for appellee; N. Gr. Moore, of counsel.

      See Illinois Notes Digest, Veis. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice O’Connor

delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court of Cook county, decreeing the foreclosure of a trust deed. The facts are these; On February 19, 1870, Samuel J. Walker, now deceased, and Henry H. Walker (appellee) executed and delivered to one Albert Price their promissory note for $40,000, payable on or before three years after date, with interest at eight per cent, per annum until maturity, and thereafter at ten per cent, per annum and to secure the payment of the same executed a trust deed conveying the property involved in these proceedings. The trust deed was filed for record in the recorder’s office of Cook county April 17, 1871. As to the entire transaction, it is conceded that Samuel J. Walker was the principal and Henry H. Walker the surety.

On or about May 20, 1871, a payment of $18,000 was made upon the note and a part of the premises released from the lien of the trust deed. Subsequently, October 13, 1874, Albert Price died testate, and Andrew B. Price became the duly qualified executor of his estate. There being a balance of $22,000 due and unpaid, the executor filed a bill to foreclose the trust deed April 9, 1878. In 1879, Samuel J. Walker and Henry H. Walker were both discharged in bankruptcy by order of the United States District Court, Northern District of Illinois, Northern Division. The balance remaining due and unpaid on said note was scheduled by each of the Walkers as a liability. Afterwards, August 12, 1887, Henry H. Walker accquired the note and trust deed from the executor and heirs at law of Albert Price, deceased, paying therefor, in property and money, $27,050, and took an assignment of the same in the name of Granville W. Browning who was authorized by the assignment to carry on the pending' foreclosure suit. The assignment to Browning was merely for the purpose of convenience, he at the time being attorney for Henry H. Walker. In 1903, Henry H. Walker filed a supplemental bill in the foreclosure suit, setting up his ownership of the note and trust deed.

The cause was referred to a master, who found, inter alia, that by the terms of the note there was, on January 10, 1913, a balance due of $42,747.54; that Henry H. Walker purchased the note; that as he was surety on the same his sole right was to be indemnified for the amount he had paid for the note; that he had already received more than this amount, and was not therefore entitled to a foreclosure of the trust deed, and recommended a dismissal of the suit. Exceptions to the master’s report were sustained by the chancellor, and a decree of foreclosure entered for the full amount due on the note in accordance with the prayer of the supplemental bill. This appeal is prosecuted to reverse the decree.

Appellants first contend that appellee, Henry H. Walker, being one of the makers of the note, to secure which the trust deed sought to be foreclosed was given, even though he signed as surety, is not entitled to a decree of foreclosure, for the reason that he has already received more than he paid for the note; and that this is true whether Walker, when he acquired the note, intended to pay or purchase it; that when he obtained the note and trust deed they were extinguished as a matter of law, and that his only right was a claim for indemnity, which he could enforce in an action at law against Samuel J. Walker, if living, or by being subrogated to the rights of the mortgagee in the security to the extent of enforcing the mortgage to recover the amount paid by him for the note, with legal interest thereon. In support of this contention, appellants cite, among others, the cases of Gillett v. Sweat, 6 Ill. 475; New Bedford Inst. for Savings v. Hathaway, 134 Mass. 69; Coggeshall v. Ruggles, 62 Ill. 401; Reed v. Norris, 2 M. & C. 362; Fitch v. Hammer, 17 Colo. 591; Swem v. Newell, 19 Colo. 397; Frevert v. Henry, 14 Nev. 191; Burrus v. Cook, 215 Mo. 496; Waldrip v. Black, 74 Cal. 409; Snell v. Davis, 149 Ill. App. 391; Curley v. Ford, 168 Ill. App. 525.

In Gillett v. Sweat, supra, it was held that payment of a note by one of the joint makers extinguished it, and therefore the joint maker who paid it could not maintain an action thereon in the name of the payee for his úse against the comaker.

In Reed v. Norris, supra, it was held that where a surety compounds a debt for which his principal and himself had become jointly liable and takes an assignment of the debt to a trustee for himself, he can only claim as against his principal the amount which he actually paid.

In Coggeshall v. Ruggies, supra, Buggies, as principal and Coggeshall as surety, executed a promissory note. Default in payment having been made, judgment was entered against both. Afterwards Coggeshall paid the judgment and arranged that the judgment should not be satisfied, as Coggeshall desired that Buggies’ land be sold to satisfy the judgment. The land was sold under execution, and the title bought by Coggeshall in a roundabout way. Buggies filed his bill to set aside the sale. It was decreed that the sale be set aside upon condition that Buggies reimburse Coggeshall for the amount the latter had paid in satisfying the judgment.

Fitch v. Hammer, supra, was an action at law brought against the principal by. sureties who had paid a note and had taken an assignment of it to themselves. The defense was that the note was extinguished. The court held that the plaintiffs could not recover in an action on the note, but could maintain an action for reimbursement. To the same effect are Swem v. Newell, supra, and Frevert v. Henry, supra.

In New Bedford Inst. for Savings v. Hathaway, supra, one of two sureties was dead and the principal was insolvent. The holder of the note, by arrangements with the living surety, proved the note against the estate of the deceased surety and then assigned the note and claim to the living surety who paid the full amount to the creditor. It was held that the note was paid and that the living surety was entitled to recover against the estate of his cosurety one-half of the amount paid. The court there say (p. 71):

“Payment by one of several joint debtors, although it be made by him in the form of a purchase, and be accompanied by an assignment of the debt, is still a discharge of the debt. * * * Where the payment thus made is by a surety, as he is entitled in equity to be subrogated to the right which the creditor may have in the securities which have been given him by the principal debtor, so that he may enforce them for his own benefit, the debt is there treated as still existing, so far as it may be required for that purpose.”

In Burrus v. Cook, supra, a note was executed by a principal and two sureties. Judgment was recovered against all. One of the sureties paid the judgment and took an assignment of it. Subsequently he brought suit in equity against his cosurety to enforce contribution. The court there held that the cosurety’s right of contribution was based on “an implied promise which the law raises up from principles of natural justice and right,” and that this right arose upon payment of the judgment and was barred in five years.

In Waldrip v. Black, supra, Waldrip signed a note as surety, and at the time the other two makers of the note gave him a mortgage to secure him in the reimbursement of any payment he might be compelled to make. Waldrip paid the note and brought suit to foreclose the mortgage. It was held that he could recover the amount paid with legal interest, which was less than the rate provided in the mortgage.

In Snell v. Davis, supra, it was held that the assignment of a note to one of several joint makers operates to extinguish it.

In Curley v. Ford, supra, a note and trust deed securing the same were given by Ella B. Ford on five lots. She held the title to the lots for the benefit of herself and one Kause. Two of the lots were after-wards set apart to Kause in partition. She paid the indebtedness and took an assignment of the mortgage to herself and attempted to foreclose it for a pro rata share against the lots belonging to Kause. A decree of foreclosure was entered. This court reversed the decree, one of the grounds being that there was no allegation in the bill that Kause had received any of the loan, and that he was not obligated to pay any part of it. It was also held that as Mrs. Ford, one of the makers of the note, paid the same in full, this extinguished the debt.

Appellee’s position is that he is not claiming ownership of the note and trust deed in the capacity of surety. His position is, as stated by his counsel: “He is not, nor has he ever claimed a right to recover in that capacity. He claims to be the sole owner of the note and mortgage in suit, and is suing to foreclose. He did not buy the note as surety, but on his own behalf, and has never 'made any different claim; nor was he then surety. His averment that, at the origin of the debt, he was surety for Samuel J. Walker is made only to show that he was never the real debtor, though by the note he appeared to be;” that even if the relation of suretyship existed at the time he bought the note and mortgage, and if he was fiduciary, yet he may lawfully buy the secured note as any stranger might and collect it for himself; and that where a person buys commercial paper on which he is a surety, no one can object that the surety paid less than the face value thereof except the principal.

In Flagg v. Celtmacher, 98 Ill. 293, the owner of real estate, after executing a trust deed thereon to secure a loan, conveyed the premises to another subject to the incumbrance, which the purchaser assumed and agreed to pay. It was held that the grantee became the principal debtor and the maker of the trust deed and note the surety, and as such the surety had the right to buy the note and mortgage, have the property sold by the trustee under the power contained in the trust deed and become the purchaser of the same at such sale. The court in passing on the validity of this sale say (p. 298) :

“The only other question pressed on our attention is this: was the trust deed when Toms (trustee) sold and appellee purchased, a subsisting lien on the premises, or was the debt to secure which it was given, paid and the lien discharged and the power of the trustee to sell extinguished? If the debt was, in its full sense, paid, then the power of the trustee was at an end.

“But it is contended that the debt was. not so paid as to extinguish the lien for the money. Holmes (payee) was paid, it is true, but did that release the land? * * *

“Appellee was under no legal or moral obligation to protect the rights of appellant. Their relations were such that he could deal with the property as any other stranger. # * * She recognized the lien and agreed to pay it or the land might be sold to satisfy it, and failing to pay, upon what grounds can she insist that appellee shall pay, or when he pays, the lien shall not inure to his benefit, or that he shall not purchase precisely as might a stranger to the transaction? * * * Appellee became virtually a surety for its payment to the creditor. And as such he had the right to pay if he chose, without canceling the debt as to them. He could therefore become the purchaser at the trustee’s sale.”

In that case it was held that a- surety might purchase a note and trust deed, have the property sold by the trustee under the power contained in the trust deed and become the purchaser at such sale, and the lien of the trust deed was not affected by the fact that the surety purchased it and the note.

In Allen v. Powell, 108 Ill. 584, a corporation appealed from a decree foreclosing a mortgage given by it, and the decree on appeal was affirmed, whereby the surety on the appeal bond became liable to pay the amount of the decree. It was held that the surety had the right to purchase the decree and hold the same for his indemnity; that the decree was not discharged, but according to the intention of the parties will be kept alive for the surety’s protection; that the law did not forbid such purchase.

In Katz v. Moessinger, 110 Ill. 372, it was held that a surety on notes, upon which judgment had been entered, might pay the judgment, and keep it alive for his own benefit, or regard it as paid and discharged as might best subserve his interests.

In Thomas v. Home Building Ass’n, 243 Ill. 550, the court say (p. 559):

“The assignment of a judgment will not satisfy or extinguish it where the assignee, although liable for the debt evidenced by it, is not a party to the judgment, or occupies the position of a surety only. (23 Cyc. 1475).”

In Howland v. White, 48 Ill. App. 236, the court say (p. 242):

“It is urged that the appellee (surety) has no cause of action as holder of the notes because the notes were extinguished by the payment of them by her. The proof, we think, is that the appellee did not pay the notes but purchased them, and also the lease, as an indemnity against loss. * * * This she might lawfully do, and keep them alive and not discharged as by payment, though she, as surety, was one of the payers of the notes.”

See also, Anglo-American Land Mortgage & Agency Co. v. Bush, 84 Iowa 272; Fowler v. Strickland, 107 Mass. 552; Hickman v. McCurdy, 7 J. J. Marsh. (Ky.) 555; Blow v. Maynard, 2 Leigh (Va.) 31.

From an examination of the foregoing and other authorities, it appears that in some cases it is held that where a surety acquires the note, either by way of purchase or assignment, the note is extinguished and no action can be maintained thereon by the surety, but that he is entitled to receive only the amount he paid with interest, and can maintain an action at law on the implied contract for indemnity; or he can enforce any security in a suit in equity for his indemnity. In other cases, however, it is held that the surety may purchase the note and enforce it the same as a stranger might do.

In the case at bar the original bill to foreclose the trust deed in question was filed April 9,1878. Shortly thereafter, Samuel J. Walker and Henry H. Walker, the principal and surety on the note, were both discharged in bankruptcy from this very obligation. In August, 1887, Henry H. Walker purchased the note and trust deed for a consideration satisfactory to the owners thereof. The title was taken in the name of Granville W. Browning. About four years prior to this transaction, Samuel J. Walker died, his death was suggested and his representative substituted in his stead. The appellants acquired their title to the premises through various sheriff’s deeds, bankruptcy proceedings and tax titles, etc., except as to a small tract of the land claimed by the appellant railroad company, which was acquired from the owner of the property. These titles were obtained long after the trust deed was placed of record and long after the institution of the foreclosure proceedings, so that appellants in every instance, except as to the tax deeds, presumably got the benefit of the amount of the note. Van Sant v. Rose, 260 Ill. 401. There is no dispute that the indebtedness has never been paid, but it is admitted that there is still due and unpaid the sum of $44,816.64. The property which appellants now hold was known to be subject to this incumbrance when purchased by them. It would be inequitable, therefore, to permit appellants to hold the property without paying the balance due under the trust deed. Van Sant v. Rose, supra; Flagg v. Geltmacher, supra.

Appellants next contend that the cause of action is barred by the statute of limitations for two reasons: (1) That as appellee was a party to the note, after acquiring it, he could enforce the mortgage only to the extent of indemnifying himself; that this was a new cause of action which accrued to appellee when he obtained the note and was barred in five years; (2) that the note, by its terms, became due in February, 1873, and the right to- foreclose the trust deed accrued at that date; that more than thirty years had elapsed before the supplemental bill was filed in 1903; that appellee could only enforce his rights by filing an original bill in the nature of a supplemental bill, which is equivalent to the commencement of a new suit, and that therefore any right which appellee claims to have was barred long before 1903.

What we have said in holding that appellee could enforce the mortgage debt against appellants for the full amount disposes of appellants’ first proposition. As to the second proposition, we are of the opinion that appellee could bring his rights before the court by a supplemental bill, as no new parties or new interests were brought into the case. The distinction between supplemental bills and original bills in the nature of supplemental bills is purely technical and is frequently disregarded. Story on Equity Pleading, sec. 345; 16 Cyc. 359. Furthermore, payments were made on the note from time to time, the last one having been made in 1907, so in no view of the case could the statute of limitations apply.

Appellants Chauncey J. Jones and John Boomer, as executors, etc., next contend that appellee is barred from claiming any interest in eighteen acres of the property involved in this proceeding, for the reason that he failed to assert his claim thereto in another proceeding in which the property was sold under a decree of foreclosure. The record shows that Samuel J. Walker and Joseph E. Young, in 1872, executed a trust deed to said eighteen acres to secure an indebtedness of $200,000; that on October 25, 1881, Henry Sampson and others, as owners of the indebtedness, filed a bill to foreclose the trust deed in the Federal Court; that appellee was made a defendant, served with process and defaulted in that suit; that a decree of foreclosure was entered October 20,1890, finding that the complainants had a first lien on said eighteen acres and decreed that the property be sold; that appellee became the purchaser at such sale and afterwards assigned the certificate of sale to said Nelson A. Steele, without disclosing to said Steele, his present claim as owner of the Price mortgage. The Price mortgage is dated 1870, and was therefore, as a matter of fact, a first lien on the premises, and the suit to foreclose that mortgage had been pending four years when Sampson filed his bill in the Federal Court. In the Sampson suit the owners of the Price mortgage were not made parties defendant, and no suggestion was made in that case 'that would in any way effect the validity of the Price mortgage. It appears that appellee was made a party to the Sampson suit for the reason that he had made another mortgage to one Prather, which the bill sought to set aside; that he was defaulted in 1883, four years before he acquired the Price mortgage. From this it clearly appears that the lien of the Price mortgage was in no way affected in the Sampson foreclosure suit.

Appellants further contend that appellee is barred from all relief as to a portion of the premises sought to be foreclosed in this suit, by reason of a decree entered in a so-called burnt record proceeding, instituted by appellee in 1896, in which appellants were parties defendant, as he then failed to present the claim he seeks to enforce in this suit. Appellants in that case filed demurrers to the bill or petition, which were sustained on the ground that the petitioner or complainant was guilty of laches, and the suit dismissed. In affirming the decree of dismissal the Supreme Court held that the suit was a bill to redeem from a sale under a mortgage (Walker v. Warner, 179 Ill. 16). The bill in that case expressly alleged that the Price mortgage was prior to the rights involved in that case, which was admitted by the demurrers. Appellee was not there required to set up his ownership of the Price mortgage. This contention is without merit.

Appellants Jones and Boomer, as executors, etc., next contend that the decree is erroneous in that certain portions of the mortgaged premises were released from the lien of the mortgage without any proof of payments; that other property not released was not included in the decree, and that there was no evidence or finding that the premises included in the decree were charged only with a due proportion of the total indebtedness, the argument being that a mortgagee cannot release a portion of the premises without releasing pro tanto the remaining portion of the premises; that, there were more than.twenty release orders entered in the case. In each order the court found that the pro rata share of the mortgage indebtedness as to certain portions of the mortgaged premises was paid and discharged, and it was ordered that the bill be dismissed as to such property and a release of the mortgage given. Each of these orders appears to have been entered on motion of the complainant without notice. Appellee testified that he did not know how much was paid when the several releases were given, but that the amount was probably shown in the releases and credited on the note; that he did not keep any book of account or memorandum showing the amounts received on the note. The master found that certain of the mortgaged premises had been released from the mortgage, and that if the appellee could recover, the mortgage was a lien on the property which had not been released. This was also found by the chancellor. No objection was urged to the master’s report in this respect, nor does it anywhere appear in the record that the point was made that the property ordered sold by the decree was charged with more than its due proportion of the mortgage indebtedness, by reason of the release of certain of the premises; and, indeed, counsel for appellant concede that no such point was made. They contend, however, that it was not necessary for them to do so, but that it must affirmatively appear that the property decreed to be sold was charged only with its due proportion of the indebtedness. In this contention we cannot concur. The findings of the master are conclusive where no objections are filed to such findings. Barney v. Board Comr’s Lincoln Park, 203 Ill. 397. Objections to the findings of a master cannot be first raised on appeal. Gehrke v. Gehrke, 190 Ill. 166. They are a prerequisite to review findings of fact. Marble v. Thomas, 178 Ill. 540. In the case last cited, the court quoted from the case of Jewell v. Rock River Paper Co., 101 Ill. 57, as announcing the true rule, as follows: “It is well settled that where matters of fact are referred to a master for his determination, it is the duty of the parties, when notified, as was done here, to appear before him and there contest the matter, and if his findings are not, in their judgment, supported by the evidence, it is their duty to interpose their objections, so as to afford the master an opportunity to modify his report if it should happen to be wrong, and if in such case, after hearing the objections, the master declines to modify or change his report, it is the duty of the objecting parties, after it has been filed in court, to appear there and file exceptions to it; and when this course has not been pursued, and no sufficient reason is assigned for not doing so, as was the case here, the report of the master, when approved by the court, will be deemed in this court conclusive upon the questions covered by it.” The contention here made, not having been called to the attention of the master and chancellor, is not properly before us.

What we have said is likewise applicable to appellants’ contention that certain of the premises covered by the mortgage, although not shown to have been released from the lien of the mortgage, is not decreed to be sold.

Appellants further object that the court erred in decreeing the sale of certain property which the evidence showed some of the appellants had a prior and adverse title to, and for the further reason that the decree adjudged the sale of the property therein described, but that it should have provided for the sale only of the right, title and interest acquired by appellee under the quitclaim deed from Price and wife. It appears from the evidence and the court found that the title of appellants to certain parcels of the premises covered by the mortgage is adverse and prior to the rights of the appellee under the mortgage, but the court expressly found that the validity of such title, or titles, could not be determined in this proceeding; that “no right, title or interest of any' defendant to any part of said premises which never was subject to "the lien of the said mortgage, or which by any lawful procedure has been discharged therefrom, is intended hereby to be subjected to said lien; the court expressly declining to examine into the comparative merits of any claim of title to said premises asserted in this cause.” The adverse claims or titles could not be properly dealt with in this proceeding. Gage v. Perry, 93 Ill. 176; Bozarth v. Landers, 113 Ill. 181. The objection that the decree should not have adjudged the sale of the property in any event, but only the right, title and interest that appellee acquired under the quitclaim deed of 1870, is extremely technical and without merit. The decree follows the mortgage.

Finding no substantial error in the record, the decree of the Circuit Court will be affirmed.

Affirmed.

Mr. Justice Goodwin

dissenting.

As I am unable to concur in the conclusions reached by the majority of the court, it seems desirable that I should set out the reasons which have compelled me to dissent.

The main facts necessary to an understanding of the questions involved in this case, briefly stated, are as follows: Appellee and his brother, Samuel J. Walker, executed a promissory note dated February 19, 1870, for $40,000, payable three years after date to the order of Albert Price, with interest at eight per cent, per annum and ten per cent, after due, secured by a trust deed executed by the parties to the note; appellee had no interest in the mortgaged property, and while he was a joint maker of the note and his name was signed above that of his comaker, he, in fact, signed only as surety. Andrew B. Price, executor of the estate of the payee, filed a bill April 9, 1878, to foreclose the mortgage given to secure the note in question.

The principal debtor, Samuel J. Walker,- died in 1883, and some time prior thereto both he and appellee had been discharged in bankruptcy. The executor and heirs of the payee executed a certain instrument under seal, dated August 1, 1887, reciting that in consideration of $4,000 and some real estate (which was not described) they sold, assigned, transferred and conveyed to one Granville W. Browning all their right, title and interest in and to the note in question, and in the trust deed given to secure the same, and gave him full power and authority in his or their names to collect the money due and carry on the suit pending. Prom that time until July 6, 1903, Browning repeatedly appeared in court as solicitor for the original complainant, and secured the entry of numerous orders releasing certain pieces of property from the lien of the mortgage; he also filed a supplemental bill in the name of the original complainant in June, 1894. April 3, 1903, a motion to dismiss was made on the part of certain defendants, on the ground that the evidence taken before Master in Chancery Cooper disclosed that the note in question had been tarnsferred to Browning as the agent of appellee. By leave of court, appellee filed his supplemental bill July 13,1903, against numerous defendants, including the appellants in this cause, in which he rehearsed the various steps in the litigation, alleged that he signed the note and trust deed as surety only, and sought to enforce the lien of the mortgage for the balance due on the note, on the ground that he had purchased it through Browning, who had acted as his agent. It appears from the master’s report that in signing the note he did act as surety, and that Browning had acted solely as his agent in acquiring the note. It further appears that appellee, at the time he filed his bill, had already received payments in excess of the amount paid by him in acquiring or discharging the note in question. The chancellor, however, found that there was still due on the note on January 10, 1913, the sum of $42,747.54, and entered a decree allowing appellee to foreclose for this amount and interest thereafter.

The main grounds upon which appellants seek a reversal of this decree are, first, that the acts by which appellee attempted to invest himself with title to the note constituted a payment and extinguishment of it, and that though he be a surety, his sole right in equity is to be. subrogated to the rights of the payee for the purpose of indemnity only; and second, that the supplemental bill filed in this cause in 1903 constituted a supplemental bill in the naturé of an original bill, and as it was not, filed until sixteen years after appellee’s rights, if any, accrued, he was barred by his laches.

It is a very ancient and, I believe, indisputable principle that because of the mutually fiduciary relations which exist between principal and surety, the surety is disabled from dealing with the subject-matter of the obligation in such a way as to gain for himself a profit. Upon this principle both the civil and common law are agreed. In a Louisiana case in which the civil law applicable to the question is discussed, a distinguished authority is quoted as saying: ‘ ‘ Suretyship is entered upon as a means of service; not as an instrument of profit.” (Succession of Dinkgrave, 31 La. Ann. 707.)

In Reed v. Norris, 2 Mylne & Craig, 362, Lord Cottenham, then Lord Chancellor, said p. 374:

“The other question is, how far the representatives of the son, the surety, having come to an arrangement with Lord Vernon’s executors, by which the bond for 500 pounds has been got rid of and discharged, are entitled, as against the father’s estate, to demand more than they have actually paid to Lord Vernon’s executors in exoneration of the liability of the son’s estate upon the bond for 500 pounds.

“Now, if there had been no authority upon this subject, I should have found very little difficulty in making a precedent for deciding that, under these circumstances, the surety is not entitled to demand more than he has actually paid. I take the case of an agent. Why is an agent precluded from taking the benefit of purchasing a debt which his principal was liable to discharge? Because it is his duty, on behalf of his employer, to settle the debt upon the best terms he can obtain; and if he is employed for that purpose, and is enabled to procure a settlement of the debt for anything less than the whole amount, it would be a violation of his duty to his employer, or, at least, would hold out a temptation to violate that duty, if he might take an assignment of the debt, and so make himself a creditor of his employer to the full amount of the debt which he was employed to settle. Does not the same duty devolve on a surety? He enters into an obligation and becomes subject to a liability, upon a contract of indemnity. The contract between him and his principal is, that the principal shall indemnify him from whatever loss he may sustain by reason of incurring an obligation together with the principal. It is on a contract for indemnity that the surety becomes liable for the debt. It is by virtue of that situation, and, because he is under an obligation as between himself and the creditor of his principal, that he is enabled to make the arrangement with that creditor. It is his duty to make the best terms he can for the person in whose behalf he is acting. His contract with the principal is indemnity. Can the surety, then, settle with the obligee, and instead of treating that settlement as payment of the debt, treat it as an assignment of the whole debt to himself, and claim the benefit of it, as such, to the full amount; thus relieving himself from the situation in which he stands with his principal, and keeping alive the whole debt?

“As I have said, I would make a precedent if there were none; but it is very satisfactory to me to find that the question came before Lord Elden, and that he decided it in the cases which have been cited, viz., Ex Parte Rushforth” (10 Ves. 420), “and Butcher v. Churchill” (14 Ves. 567). “Lord Eldon did not decide those cases upon particular grounds of equity between the parties; but he lays it down as what he considers to be the rule of this court, that where a surety gets rid of and discharges an obligation at a less sum than its full amount, he cannot, as against his principal, make himself a creditor for the whole amount; but can only claim, as against his principal, what he has actually paid in discharge of the common obligation.”

It is very clear, then, from the authorities in this case, that if the land mortgaged were still held by the original principal, appellee could not enforce the mortgage for a greater sum than the amount he had actually paid. He would be entitled to be subrogated to the rights of the payee for the purpose of indemnity and nothing else, regardless of whether the transaction by which he acquired the note took the form of a purchase or a discharge. The principle is amply sustained by the authorities, and is accepted as unquestioned by that learned author and jurist, Joseph Story, who says, in his work on Equity Jurisprudence, section 316:

“Upon these principles if an agent sells to his principal his own property as the property of another, without disclosing the fact, the bargain, at the election of the principal, will be held void. So if an agent employed to purchase for another purchases for himself, he will be considered as the trustee of his employer. Therefore if a person is employed as an agent to purchase up a debt of his employer, he cannot purchase the debt upon his own account, for he is bound to purchase it at as low a rate as he can, and he would otherwise be tempted to violate his duty. The same rule applies to a surety who purchases up the debt of Ms principal. And therefore in each case if a purchase is made of the debt, the agent or surety can entitle himself, as against his principal, to no more than he has actually paid for the debt.”

This principle was approved and applied by our Supreme Court in Coggeshall v. Ruggles, 62 Ill. 401, where it held that the surety who had, by an assignment to another, become the purchaser of his principal’s obligation, was only entitled to indemnity. The court said (p. 404):

“Having acquired, by his arrangement with Beasely, the right to control the judgment, he must be regarded in a court of equity as having paid it, except so far as it would be just to allow the sheriff’s certificate of sale to be treated as a security. The principle is the same as when a surety buys the debt against his principal for less than its-face. He can enforce payment to himself of whatever he has actually paid, but only of that amount. Story’s Eq. Jur., sec. 316; Reed v. Norris, 2 Mylne & Craig, 361.”

The appellee in this case, however, contends that the case at bar is distinguishable for the reason that the relation of .surety and principal is personal, and does not extend to those who have acquired title to the mortgaged property. Clearly, in this contention counsel ignore the only ground upon which the surety is allowed to recover at all, either at law or in equity. The debt secured by the mortgage is an obligation of which the appellee is a joint maker. It was, of course, impossible for him to acquire it without extinguishing it. But the law, for the purpose of protecting a surety who, in order to protect himself, has been obliged to discharge the original obligation, permits the surety to stand in the shoes of the obligee; but clearly, under the authorities, it permits him to do this for the sole purpose of indemnity. For that purpose, and for that purpose only, the obligation is kept alive in equity. The reason that the surety was allowed redress at all unquestionably was that the principal was bound, in-conscience, to make good the loss to the surety resulting from his own failure to discharge the obligation. The reason thai; he is not allowed to become a purchaser by assignment to some one else, and enforce the obligation to its full extent at law or in equity, is the mutually fiduciary relation which exists between principal and surety. The law recognizes that the affairs of the debtor may become involved, and that he has the right, therefore, to extricate himself upon the best terms obtainable. A surety, by reason of the fact that he is a surety, is brought into direct communication with the creditor and enabled to negotiate a settlement. The relation of principal and surety is manifestly one of mutual confidence, and it would be highly inequitable, therefore, to permit the surety to take advantage of the situation and become á competitor with his principal, and forestall him in the purchase of the obligation. But his principal is bound in good faith to indemnify him, and indemnity is.well said to be the full measure of the principal’s implied contract. But so far as the purchasers of the mortgaged property are concerned, there is no direct obligation running from them to the surety who has purchased the note. A mortgage of the character of the one in the case at bar is purely a collateral undertaking, dependent for its existence upon the continued existence of the original obligation. By the mortgage in question, the property stood charged with the joint debt of appellee and his principal; when appellee purchased' it he discharged it, but became subrogated to the rights of the payee for the purpose of securing indemnity. To that extent his principal became obligated to him, and for the purpose of enforcing that obligation equity kept the mortgage alive and gave him the right to resort to ■ the mortgaged property. In other words, equity, for the purpose of indemnifying a surety, permits him to stand in the shoes of the creditor for the purpose of enforcing the obligation which his principal owes him, hut the burden with which the mortgaged property is charged is the obligation of the principal debtor, and cannot be extended beyond that obligation, which, in the case of appellee, is to indemnify him for the amount expended in acquiring their joint obligation.

The appellee further contends that the principles governing surety and principal do not apply in this case because the principal maker died several years before appellee purchased the note, and they both had, prior to that time, been freed from the obligation of this debt by his discharge in bankruptcy. In the first place, I am unable to see how the death of the principal could in any way affect the status of the appellee, for certainly all the obligations which he owed the principal he continued to owe to the principal’s estate, just as the administrator continued to be obligated to him to the same extent to which the principal had been in his lifetime. (See Reed v. Norris, supra.) I think, moreover, that the ease is not affected by the bankruptcy of the principal and surety. The original obligation of the principal was not extinguished by his discharge in bankruptcy, although the remedy of the creditor might be confined to the mortgaged property. It must be noted also that the discharge in bankruptcy did not extinguish the debt of either appellee or his principal, but, at most, gave them a means of defending against the enforcement of the obligation if they saw fit to use it. The obligation itself remained, and with it a moral duty to discharge it. Appellee’s discharge in bankruptcy was, at most, a shield which might or might not be successfully interposed to protect him against a pursuing creditor. In Marshall v. Tracy, 74 Ill. 379, an action was brought upon a debt, and bankruptcy was pleaded, to which the plaintiff replied a new promise. In affirming a judgment in favor of the plaintiff, our Supreme Court said (p. 379):

<:One question raised was, whether appellee could declare on the original cause of action, or whether he was bound to declare specially on the alleged new promise. Chitty, in his work on Pleading, states the rule to be ‘when the subsequent promise is effectual, it is sufficient to declare upon the original consideration, unless where the promise is conditional, in which case it seems to be necessary for the creditor to declare specially: ’

“The authorities are not all harmonious on this question, but the doctrine best sustained by authority is that the original cause of action is not destroyed by the discharge in bankruptcy. The bar which the discharge interposes may be removed by an unconditional new promise, and the debt revived upon the original consideration. Shippey v. Henderson, 14 Johns. 178; Way v. Sperry, 6 Cush. 238; 1 Chitty’s Pleading, 54.”

In Bush v. Stanley, 122 Ill. 406, the Supreme Court said (p. 415):

“We said in Marshall v. Tracy, 74 Ill. 379: ‘The doctrine best sustained by authority is, that the original cause of action is not destroyed by the discharge in bankruptcy. The bar which the discharge interposes may be removed by an unconditional new promise, and debt revived upon the original consideration. ’ And this was re-affirmed in Classen v. Schoenemann, et al., 80 Ill. 304. The discharge is analogous, in effect, to the Statute of Limitations, in so far as it does not annul the original debt, but merely suspends the right of action for its recovery. (F. and M. v. Flint, 17 Vt. 508; 44 Am. Dec. 351.) It follows, necessarily, that the privilege is purely personal to the bankrupt, and if he does not choose to avail of it, no one else can do it for him.”

It is clear, then, that the relation of principal and surety did not cease to exist by reason of their discharge in bankruptcy, and that the only change effected by that discharge was to give them a method of preventing the enforcement of the obligation, which might or might not be successfully pursued. If the surety chose to purchase the obligation, then, he effectually extinguished it at law, notwithstanding the fact that he had a defense which he might have interposed if suit had been brought against him. In this aspect of the case, as in the other, I see no way to escape the conclusion that a purchase by a maker of a note extinguishes it, and that if a joint maker can enforce it at all against his comaker, it can only be upon the ground that as between him and his comaker he is a surety, and entitled to indemnity. Leaving that fact out of consideration, he is entitled to nothing at all. In this case the record discloses that he has been fully indemnified.

Counsel for appellee, in support of their position, cite many cases holding that an accommodation indorser may purchase the note and enforce it in full against the maker. It máy be noted here that the position of the accommodation indorser in the cases cited is entirely different from that of a joint maker who is, in reality, a surety. The express undertaking of the maker of a note to any indorser is to pay him in accordance with the terms of the note. The liability of the principal maker to a joint maker who signs as surety is, on the other hand, an implied promise to indemnify him. If one, purely for the accommodation of the maker of a note, consents to assume the position of an indorser, he, of necessity, becomes entitled to all the rights and remedies of an indorser, and is in no way differently situated from one who has come into the position of an indorser in the ordinary course of business. The maker’s express contract with every indorser, whether accommodation or otherwise, is payment in accordance with the terms of the instrument, and not indemnity. The cases cited by counsel for appellee on the question of agency are also clearly beside the point. An agent who purchases property for himself when under a duty to purchase it for his principal, or who acquires the property or obligation of his principal, acquires the legal title. If the principal desires to take advantage of the purchase in the one case, or cause the sale to he set aside in the second, he must, in some appropriate way, make it clear that he has elected to do so. But the surety, who purchases the obligation of his principal, becomes possessed of no legal title, and to enforce his rights he must ask in a court of equity, to be subrogated to the right's of the obligee, or sue at law upon his principal’s agreement of indemnity which the law implies, and, as we have seen, in both cases, the measure of his relief is the same.

Counsel for appellee also attempt to sustain the decree upon the ground that as between the purchasers of the property and the appellee, the equities are with the latter. As we have seen, however, the record discloses that the appellee, a surety, purchased an obligation, of which he was a joint maker, from the representatives and heirs of the payee. The well-settled principles of law, as they existed at the time he made the purchase, entitled him to be indemnified on account of the loss sustained in discharging himself from his obligation as surety. Clearly, the law entitled him to this and. to no more, and he must be presumed to have acted with a full knowledge of his legal rights. He has, as we have seen, received everything that the law entitled him to. Let us look at it from the broad principles of justice and equity. The surety ordinarily, by reason of his relation to his principal, has some intimate knowledge of his principal’s affairs and in regard to the value of the property pledged as security. If the principal is embarrassed, ordinarily he negotiates with his creditors and settles his liabilities upon the best terms obtainable. The surety is brought into communication with the creditors by reason of the fact that the obligation is also his own. It would be manifestly a breach of faith for him, in competition with his principal, to acquire the obligation and then enforce it in full. The law declares that an obligation purchased by a joint obligor is extinguished; equity says, we will keep it alive, not for the purpose of allowing the surety to enforce it, but for the purpose of compelling the principal to do that which in good conscience he should do, namely, indemnify the surety. If, moreover, property is mortgaged to secure the obligation, and comes into the hands of third persons, equity will go a step further, and say that although the obligation is extinguished at law, it will keep it alive for the purpose of securing indemnity for the surety. But counsel wishes us to say that equity must go a step still further, and say that it will keep the obligation alive for the purpose of allowing the surety and co-obligor to enforce it against the purchasers of the mortgaged property for the full amount of the original obligation. I do not think that a single case cited by counsel for appellee sustains this position. Clearly, the purchaser of property, whether he gets it by direct grant or in satisfaction of a judgment or decree, is entitled, under every principle of equity, to stand exactly in the shoes of the person through whom he derives title. The argument of counsel that the purchasers of the property presumably obtained it for its value, less the amount of the incumbrance, seems sophistical and fallacious. The principal, when the property was in his hands, had the right to relieve it from the incumbrance of the mortgage upon the best terms obtainable, and without competition by his surety. When, therefore, third persons derived title through him, they became possessed of this same right. I see no equitable reason for saying that the appellee was entitled to recover a greater sum when the land was in the hands of third persons than he would have been had it still remained in the hands of his co-obligor.

As I am of the opinion that for the reasons already indicated, the decree should be reversed and the cause remanded with directions to dismiss the supplemental bill, I do not think that it is necessary to discuss the other points raised.


author: Mr. Justice O’Connor

text:
    Post & Lester Company, Defendant in Error, v. Chicago Flexible Shaft Company, Plaintiff in Error.
    Gen. No. 21,221.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed June 19, 1916.
    Statement of the Case.
    Action by Post & Lester Company, a corporation, plaintiff, against Chicago Flexible Company, a corporation, defendant, to recover for certain merchandise sold and delivered to the defendant by the plaintiff. To the statement of claim filed by the plaintiff, the defendant filed an affidavit of merits setting np its defense and a statement of set-off which, on motion of plaintiff, was stricken from the files. Defendant subsequently, at different times, by leave of court, filed a second, third and fourth affidavit of merits and statement of set-off and a fifth statement of set-off, each of which was successively stricken from the files on motion of plaintiff. Afterwards, no further defense being made, judgment by default was entered in favor ■of plaintiff. To reverse this judgment, defendant prosecutes this writ of error.
    The defendant contended that the court erred in striking its fourth affidavit of merits and fifth statement of set-off from the files, and in entering judgment in favor of the plaintiff.
    Plaintiff’s statement of claim showed in tabulated form that the plaintiff sold to the defendant seven different items of merchandise, consisting of brass tubing; that these different items were sold to the defendant on five different dates, the first being on June 19,1911, and the last on August 19,1911; that the price charged for the tubing was six cents per foot; that the total for the seven items amounted to $1,675.86; that the defendant made a cash payment of $1,219.73 on September 14,1911; that the balance due plaintiff from defendant was $456.13, with interest. The fourth affidavit of merits did not deny that the balance as stated in plaintiff’s statement of claim was the correct amount. Defendant averred that plaintiff’s statement of claim showed only a small portion of a running account, continuing from September 10, 1907, to May 21, 1912, but made no attempt to set out the account in full. Certain payments were alleged to have been made by the defendant on November 21, 1911, and May 21, 1912. There was no allegation that they were not properly credited or that those payments were made for any of the items for which the plaintiff sought to recover. Defendant averred that certain goods- of the value of $456.13 were returned to the plaintiff on account of alleged defects. There was no allegation that the plaintiff refused to accept the goods so returned or refused to give credit' therefor; nor was there any allegation that the plaintiff was seeking to recover for the value of these goods. The defendant further stated that on a certain other occasion it returned other goods to the plaintiff and received a credit of $42.98, and that it was a custom of the trade to return defective goods.
    Defendant’s fifth amended statement of set-off claimed $1,400 for loss and damage “sustained by this defendant by reason of the said defective brass tubing used in the manufacture of flexible shafts, and by reason of said brass tubing being defective the said flexible shafts so manufactured and sold by this defendant were defective and were returned to this defendant by its customers; that each of said flexible shafts so defective and returned to this defendant contained fifty inches or more of said defective brass tubing and that said brass tubing was sold to this defendant at the rate of five and seven-eights cents per foot and was charged to this defendant at said rate in said account above mentioned, a part of which account is set forth in the plaintiff’s statement of claim; that a list of the number of said defective shafts, and the dates upon which they were returned to this defendant by its customers, is contained in the statement hereto attached. ’ ’ It was further alleged that defendant suffered loss and damage by reason of the expense of labor and other materials used in the manufacture of the defective shafts.
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 13

      —when affidavit of merits and set-off properly stricken from files. In an action of the fourth class in the Municipal Court of Chicago, to recover for goods sold and delivered, affidavit of merits and statement of set-off examined and held properly striken.
    2. Municipal Court of Chicago, § 13*—when uncertain statement of set-off properly stricken. In an action of the fourth class in the Municipal Court of Chicago, to recover for merchandise sold and delivered, where the statement of set-off filed by the defendant is so uncertain and indefinite as not to allow the court to tell therefrom how the defendant arrived at the amount of its claim, it is properly stricken.

      The list attached to defendant’s statement of set-off showed the date of return and the number of shafts returned on each date. There was no showing as to the amount of damages on each item; nor was there any showing as to how much of defendant’s claim was made up of the expense of labor and other materials used in the manufacture of the shafts.
    Hay & Brown, for plaintiff in error.
    Bentley, Burling & Swan, for defendant in error;' Preston Kumler, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice O’Connor

delivered the opinion of the court.

3. Municipal Coubt of Chicago, § 13 —When statement of set-off properly stricken. In an action of the fourth class in the Municipal Court of Chicago, to recover for merchandise sold and delivered, where there is no showing that defendant’s claim of set-off grew out of the purchases for which plaintiff seeks to recover, and the damages sought to be set off are unliquidated, such statement is properly stricken.


text:
    In re Estate of Livingston T. Dickason, Deceased, Appellee. Wicks Stone Company, Appellant.
    Gen. No. 21,236.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. John McNutt, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed June 19, 1916.
    Rehearing denied June 30, 1916.
    Statement of the Case.
    Claim by Wicks Stone Company, filed in the Probate Court of Cook county, against the estate of Livingston T. Dickason, deceased, for $4,062.50. The claim was disallowed and an appeal taken to the Circuit Court of Cook county. The matter came on for hearing before a judge and jury. The court instructed the jury to, return a verdict against claimant, which was accordingly done, and judgment was entered on the verdict against the claimant for costs, to reverse which this appeal is prosecuted.
    The evidence tended to establish the following facts: That claimant was regularly incorporated about September, 1906, under the laws of Ihdiana with an authorized capital of $100,000; that its object was to quarry, buy and sell stone, etc.; that the articles of incorporation were properly acknowledged by Livingston T. Dickason, deceased, and that said Dickason on the 25th of August, 1906, subscribed for $10,000 worth of stock in the corporation.
    The record showed that the corporation began to transact business, bought real estate, seven houses, $10,000 worth of machinery, and also built one house. There were nineteen subscribers to the capital stock including Dickason. The stock subscription list was dated August 26, 1906, and provided that the subscribers pay fifty per cent, of the amounts set opposite their names, and that “we further agree to pay twenty per cent, of the amount subscribed at the time of subscription and the remainder by January 1, 1907, as same may be needed and called for by W. W. Wicks.” Afterwards, calls were made on the subscribers to pay a portion of their subscription, and in accordance with said calls Dickason made the following payments: January 18, 1907, ten per cent., $500; February 14, 1907, ten per cent., $500; April 18, 1907, ten per cent., $500; August 15, 1907, five per cent., $250; making a total of $1;750. Payments were also made by other subscribers, some paying in full by services rendered the corporation, and others by turning over property to the corporation. Notes were given in payment or part payment by others. It was conceded that the corporation ceased doing business at a date not shown. March-17,1909, a meeting of the stockholders was held at its office, at which nine stockholders were present. Dickason did not attend the meeting, although notified. At that meeting a resolution was adopted, in part, as follows: “It was, on motion, ordered that all stock in the company be issued April 1,1909, to all stockholders desiring to make final payment; that stockholders not desiring to make cask payments give note to company dated April 1, 1909, for amount unpaid. Note to be due one day after date and bear interest at four per cent, from date and to be non-negotiable. Further, that if assessment of over ten per cent, on stock be made, thirty days’ notice shall be given. Stock to be issued upon payment of notes. Certificate to be held by the company until note is finally paid. ’ ’
    Abstract of the Decision.
    1. Corporations, § 127

      —what essential to enforcement of subscription to stoclc. Where an action is brought upon a stock subscription, where it appears that a corporation has ceased to do business but owes no debts and the amount to he collected on the subscription is to be distributed among the other stockholders to equalize the losses, it is essential before a recovery that the amount of losses be ascertained and determined and that it be shown what amount is due and unpaid from each subscriber and what disposition has been made of the assets of the company before a recovery can he had.
    The secretary of the company testified that after the adoption of the above resolution, he talked with Dickason over the telephone, but it did not appear that the adoption of the resolution was mentioned in any manner; neither did it appear that any demand was ever made on Dickason after the passage of this resolution; nor that any demand was made on him after the payment of $250 on August 15, 1907. He died March 22, 1913.
    Huttmann, Cloves, Netherton & Carr, for appellant.
    Ashcraft & Ashcraft, for appellee; E. M. Ash-craft, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and. Cumulative Quarterly, same topic and section number.

   Mr. Justice O’Connor

delivered the opinion of the court.

2. Corporations, § 125 —when notice of assessment on stock subscription essential. Where a resolution of the stockholders of a corporation provides that if an assessment of over ten per cent, on stock be made, thirty days’ notice shall be given, such resolution being in conformity with the terms of the subscription list, the making of such assessment and the giving of notice are prerequisite before a recovery on a subscription.


author: Pillsbury, J.

text:
    William Drury v. William O. Dungan.
    1. Practice in Appellate Court—Errors to which no exception was taken, not noticed.—Errors assigned in the Appellate Court to the action of the court below in admitting and excluding evidence, will not be noticed, where no exception was taken to the same by the appellant. •
    2. Verdict against the weight oe evidence.-—In this case the court finds the verdict of the jury so cleai'ly against the weight of the evidence as to be sufficient ground for a reversal.
    - Appeal from the Circuit Court of Mercer county; the Hon. John J. Glenn, Judge, presiding.
    Mr. B. C. Taliaferro, for appellant;
    that the recitals in d hill of sale are not conclusive, but may be impeached by parol, cited O’Brien v. Palmer, 49 Ill. 72; Sutton v. Crosby, 54 Barb. 80.
    An express warranty of soundness is a part of the consideration of the contract, and can be proved by parol where the instrument does not express the consideration of the contract: Mumford v. McFearson, 1 Johns. 414; Wilson v. Marsh, 1 Johns. 503; Towell v. Gatewood, 2 Scam. 22.

      If, during negotiation for a sale, the owner offers to warrant the article, such warranty is binding, though the actual sale does not take place for some days after: Wilmot v. Hurd, 11 Wend. 584.
    A consideration other than the one expressed in the deed may be proved, provided it is consistent with the one expressed: 2 Philips on Ev. 353; l Greenleaf on Ev. § 285; Gage v. Lewis, 68 Ill. 604.
    A receipt or a bill of lading may be explained by parol: White v. Merrill, 32 Ill. 511; Bissell v. Price, 16 Ill. 408; Elston v. Kennicott, 46 Ill. 187; Elder v. Hood, 38 Ill. 533; G. W. R. R. Co. v. McDonald, 18 Ill. 172.
    Where a writing is executed relating to some of the particulars of a contract, but which is not shown to be the contract of the parties, parol evidence is admissible to show what the contract was: Kirkham v. Boston, 67 Ill. 599.
    Time of performance of a contract may be shown by parol: Lane v. Sharpe, 3 Scam. 567; Scott v. Bennett, 3 Gilm. 243; Fowler v. Redican, 52 Ill. 405.
    Where there is a total failure of evidence, or if the verdict is manifestly against the weight of evidence, a new trial should be awarded: St. Paul F. & M. Ins. Co. v. Johnson 77 Ill. 598; Reynolds v. Lambert, 69 Ill. 495; Smith v. Slocum, 62 Ill. 354; Ill. Cent. R. R. Co. v. Chambers, 71 Ill. 519.
    Where it is manifest from the record brought up, that the court erred in the .admission or exclusion of evidence, it is not necessary that such errors should be preserved by bill of exceptions: Tower v. Bradley et al. 66 Ill. 189; Low v. Moore, 12 Ill. 477.
    Messrs. Pepper & Wilson, and Messrs. Bassett & Wharton, for appellees;
    contending that there was no warranty except as to title, and no other warranty can be proved by parol, and the appellee is bound by the written contract alone, cited Marshall v. Gridley, 46 Ill. 247; Hartford Fire Ins. Co. v. Webster, 69 Ill. 392; Walker v. Brown, 28 Ill. 378.
    Exceptions to the introduction of evidence, and to instructions, should be made on the trial, and not being made there, it is too late to urge them in Appellate Court: Miere v. Brush, 3, Scam. 21; Armstrong v. Mock, 17 Ill. 166; Kankakee etc. R. R. Co. v. Chester, 62 Ill. 236; Gibbons v. Johnson, 3 Scam. 61.
    Where a trial is had, and evidence taken, the Court will treat the cause as being at issue, the same as though issue was joined by the pleadings: Mager v. Hutchinson, 2 Gilm. 266; Barnett v. Graff, 52 Ill. 170; Anderson v. Jacobson, 66 Ill. 522; Strohm v. Hayes, 70 Ill. 41.
   Pillsbury, J.

We cannot notice the errors assigned in this cause questioning the action of the court below, in excluding evidence offered by appellant, admitting evidence offered by appellee, or the giving or refusing instructions, as no exception was taken to the action of the court in that regard by appellant.

We shall only consider the question whether the verdict in favor of the defendant is supported by the evidence appearing in the record.

It appears- that the parties had dealings for several years prior to the institution of this suit, amounting to several thousand dollars.

On the 26th of May, 1876, a settlement was had, when the appellee executed to appellant his note for $4,684.80.

On the 24th day of August, 1876, Dungan sold to Drury a large amount of personal property, consisting of live stock, grain, farming utensils, etc., for" which he was to receive $1,400 in cash, and a surrender of all his indebtedness to Drury.' It is claimed by Drury that all the personal property was not delivered, and that the sheep purchased were not sound, as represented, and this action was brought by Drury to recover damages for breach of warranty and for failure to deliver. Dungan claimed a set-off, and on the trial the jury allowed him under that plea, $4,648.45, but the defendant remitting all in excess of $3,000, the court overruled the motion for a new trial, and rendered judgment for that sum. As against this claim of set-off, Drury alleges that in the trade of Aug. 24 all accounts between the parties was settled in full.

At the time of the trade Dungan was about removing to Kansas, and was desirous of paying all his indebtedness to Drury, and he swears that it was a part of the trade that Drury should surrender all his claims against him, Dungan, but denies that his claims against Drury were adjusted. It is a little singular, to say the least, that Dungan, who was about removing permanently to Kansas, for the purpose of bettering his condition in life, should make this trade, receiving from Drury only $1400, when, according to his statement, he was entitled to about $6,000, and he does not question the ability -of Drury to pay every cent he justly owed him.

Drury and his son both swear that the respective accounts were adjusted in the trade. Jacob Cool swears that the next •day after the trade Dungan told him “he had sold everything ■to Drury, and had made a final settlement with him, and that he had got $1400 in money, and that he expected to pay all his debts now.” To the same effect is the testimony of JoscjdIl McCoy, Michael Warwick, and A. J. Douglass.

A. M. Byers testifies: “I remember of the sale, and of Drury paying Dungan money in his, witness’, bank. Drury "wanted to know if I would take his check on Keithburg bank for $1400. I told him I would, and while he was getting ready 'to make out the check, Dungan spoke up, and wanted to know' if he would pay Mr. Essley $45. Drury said he would. So he made out the check for $1355, and I paid him the money. I heard a conversation between them while they were in the bank. Mr. Drurv said he supposed their matters were all fixed now and settled, and Mr. Dungan said they were.

“ Dungan said lie was going west, and said something about being worth as much as Drury some day; then he shook hands with Mr. Drury, said good-bye, and went out.”

This evidence, supported by the circumstances attending the transaction, and the action of the appellee after the trade in leaving the State, never claiming that Drury was indebted to him, leaves no reasonable doubt that he is not entitled to recover anything under his plea of set-off.

This verdict is so clearly against the weight of the evidence, that in our opinion the court below erred in not granting a new trial. The judgment must be reversed and the cause remanded.

Judgment reversed.