get his money, and to wait a couple of days and come back and get the money. Along in the middle of the summer of 1915, about a year after the bills had been presented to the defendant, Illio Simonoff went to the bank with N. Alabach as interpreter and had a conversation with the cashier, D. J. Murphy. Alabach asked the cashier why they would not pay the money on the drafts, and Murphy said they could not pay it because they would have to lose on the exchange. Illio Simonoff went to the bank on another occasion, on July 15, 1915, with George Manioff, when the cashier said that they could not pay that much loss; that exchange was away down; that he had received a letter from the New York bank, which he could not find, and he told them to come back later. A week afterward they went back, when the cashier was willing to pay the bills at the current rate of exchange, which had changed greatly on account of the war. This would mean a considerable loss to Simonoff and he refused to accept payment on that basis.

It is argued in support of the judgment of the Appellate Court that there was no liability of the defendant, as drawer of the bills of exchange, because they had not been presented for payment to the bank of Paris, and in the absence of presentment for payment and notice of non-payment and dishonor the defendant was discharged, and this appears to have been the view of the Appellate Court. The contract relation between the drawer and payee of a bill of exchange is that the drawer engages that on due presentment the bill will be accepted or paid, or both, according to its tenor, and if it be presented and the necessary proceedings on dishonor be duly taken he will pay the amount to the holder or to any indorser who may be compelled to pay it. Therefore, in the absence of any stipulation in the bill, it is necessary, in order to charge the drawer, to present the same to the drawee in a reasonable time, and in case the bill is not paid or accepted, to give notice to the drawer. (Industrial Bank of Chicago v. Bowes, 165 Ill.

70; Montelius v. Charles, 76 id. 303; Negotiable Instrument act, arts. 6, 7.) It does not appear that the defendant had any money or balance in the Paris bank out of which the bills were to be paid and the officers of the bank did not know what the words "at current rate" meant, but the method in use was to advise the Hanover National Bank, correspondent of the defendant in New York City, that bills of exchange had been issued and the Hanover National Bank would advise the bank in Paris. So far as known the Hanover National Bank had no money in the Paris bank nor any indebtedness due it from the bank but the business was done by credits on a mutual account. The simple fact that the drawer of a bill of exchange has no funds in the hands of the drawee will not excuse the holder from making presentment to the drawee and giving notice of non-payment, (Walker v. Rogers, 40 Ill. 278,) and it appears that provision had been made for the payment of any bill that might be drawn by the defendant on the Paris bank through notice to the Hanover National Bank. When the bills were returned to defendant it was under no legal liability to pay them unless a state of war and the drafting of Sotir Simonoff would excuse presentment, and if there was no legal liability to pay the bills without presentment to the Paris bank the defendant could not have been compelled to do so, but its right in that regard was one that could be waived, and the claim of the plaintiff was that it had been waived. The claim being that presentment was waived, it is not a question in the case whether the circumstances would legally excuse presentment.

Section 108 of the Negotiable Instrument act provides that notice of dishonor may be waived either before the time of giving notice has arrived or after the omission to give due notice, and the waiver may be express or implied. As it may be implied, any acts or conduct calculated to lead the holder of the bill to believe that presentment is waived, or to mislead him and prevent him from treating

the bill as he otherwise would, will operate as a waiver. Section 110 provides that a waiver of protest, whether in the case of a foreign bill of exchange or other negotiable instrument, is deemed to be a waiver not only of a formal protest but also of presentment and notice of dishonor, and upon general legal principles there is no reason why the right of the defendant to have the bill presented to the Paris bank might not be waived. The defendant and payee were the only parties to the contract and there was no contract relation of the Paris bank to be affected, since there is no contract relation between the drawee and the other parties until acceptance. In this case it is clear that there was a waiver of presentment, and the presentment being waived, it is, of course, wholly immaterial whether the bill would have been accepted and paid under the existing plan of charges and credits. The contract of the defendant being to pay the amount of the drafts upon conditions of presentment, dishonor and notice, when the conditions were waived the contract to pay was freed from them and the liability became absolute.

The trial court fixed the amount of damages according to the rate of foreign exchange on Paris at the time of the trial, on February 16, 1916, instead of at the time of the presentment of the bills to the defendant, on July 18, 1914, with legal interest from that date. By section 1 of the former statute the drawer of a foreign bill of exchange, in case of presentation, non-acceptance or non-payment and notice, was liable to pay the face of the bill, with legal interest from the time it ought to have been paid and ten per cent damages in addition, together with costs and charges of protest, but that section was repealed by the Negotiable Instrument act, which contains no provision on the subject. By the law merchant the holder of a dishonored foreign bill of exchange is entitled to recover re-exchange in addition to the face of the bill, with interest and the expenses

consequent on the dishonor of the bill. Re-exchange is the price that the holder of a dishonored bill must pay on the date of dishonor in the currency of the country where the original bill was drawn, payable where the original bill was payable, for a good bill, for the same amount of money. (Pavenstedt v. New York Life Ins. Co. 203 N. Y. 91; Ann. Cas. 1913A, 805.) That would exactly compensate the payee for the damages suffered, and the drawer would be liable for the re-exchange, no matter how materially the rate might have changed before the dishonor. In this case the bills had not been dishonored and there was no occasion for the payment of re-exchange, but presentment having been waived, the plaintiff was entitled to receive at the time of the waiver, in the currency of this country, the market value of 7700 francs. That amount was then due and he was entitled to recover interest from that date. The value of the 7700 francs in the currency of this country depended on the rate of exchange at the time he became entitled to such value, and he was not required to accept the value of 7700 francs more than a year afterward, when they had depreciated in the markets of this country. The trial court did not adopt the correct method of ascertaining the damages but deducted the rate of exchange in force at the time of the trial and in this particular erred.

The bills of exchange were admissible under the common counts. Brower v. Rupert, 24 Ill. 182.

The Appellate Court erred in deciding that there was no right of action and in not sustaining the error assigned concerning the measure of damages, and therefore the judgments of the Appellate Court and the circuit court are reversed and the cause is remanded to the circuit court.

Reversed and remanded.

(No. 11304.-Decree affirmed.)

JOHN H. HOWARD et al. Defendants in Error, vs. WILLIAM FOSTER BURNS, Plaintiff in Error.

Opinion filed June 21, 1917.

1. EQUITY-allegations of a bill, the proof and the decree must correspond. The allegations of a bill, the proof and the decree must correspond, and relief cannot be given upon facts proved by the evidence where there are no averments in the bill to which the evidence can apply, but it is sufficient if the evidence shows the transaction was not materially different from the allegations.

2. SAME-the rule that an equity cannot be gained by voluntary payment of a debt does not apply to purchaser of a note. The rule that one who is only a volunteer in the payment of a debt cannot establish an equity in his own favor but must have paid on request or as surety or under some compulsion made necessary for the protection of his own rights, does not apply to the purchaser of notes who did not intend by his purchase to pay the debt.

3. MORTGAGES-maker of note secured by trust deed may pay same and be subrogated where the property has been conveyed. Where one makes a note payable to his own order and indorses it. the note being secured by trust deed on the maker's property, the property becomes the primary fund for the payment of the debt, and after its conveyance subject to the incumbrance the maker of the note, who, in order to protect his credit, pays interest and contributes funds for the purchase of the note by the person to whom it was transferred, is entitled to be subrogated to the rights of the creditor to the extent of his payments and to enforce the lien of the trust deed.

WRIT OF ERROR to the Appellate Court for the First District;-heard in that court on appeal from the Circuit Court of Cook county; the Hon. JESSE A. BALDWIN, Judge, presiding.

GEORGE F. ORT, for plaintiff in error.

EUGENE D. SULLIVAN, and THOMAS L. STITT, (S. R. FUTRANSKY, and P. B. SMITH, of counsel,) for defendants in error John H. Howard and James L. Shaw.

WILLIAM B. JARVIS, for defendant in error Carl A. Stonehill.