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Except upon the credibility of witnesses, and the preponderance of evidence, and the burden of proof, no other instructions were given. The jury returned a verdict for $500 in favor of the plaintiff, and the court rendered judgment accordingly, and the defendant appealed.

the boiler exploded. The company discharged [ tract sued on, and your verdict must be for him, and he demanded an investigation under defendant." article 1 of his agreement. He designated M. W. Cadle as the person who should make the investigation in conjunction with the master mechanic of the defendant. Cadle and the plaintiff appeared before the master mechanic and demanded the investigation, which was granted. They made a joint examination of the boiler, and together discussed the cause of the explosion. The master mechanic reached the conclusion that the cause was the failure of the engineer to keep the boiler supplied with a sufficient quantity of water, and so reported to the proper officer. Cadle made no announcement of his conclusion,-perhaps disagreed with the other arbitrator. No appeal to the superintendent was made, and no other investigation was demanded.

The names appended to the rules before referred to were those of Frank Reardon, the superintendent of the locomotive and car department of the Missouri Pacific Railroad Company, and of George C. Smith, the general manager of the same company. The rules were agreed upon by the Brotherhood of Locomotive Engineers and the company, and were accepted by them as modifications of the agreement entered into by them, of which article 1 of plaintiff's contract was a part. There is no direct evidence that these rules were made a part of the contract of plaintiff and defendant adduced, except that the plaintiff was a member of the Brotherhood of Locomotive Engineers, and the admission of the defendant that article 1 was a part of their

contract.

Appellant contends that the contract sued on is void, because it is contrary to public policy. The reason given for this contention is that it takes from it the right to discharge its employees without the approval of a board of arbitration, and thereby deprives the railroad company of the power to discharge those duties imposed upon it by law which can be fully exercised only when it is allowed to discharge incompetent, careless, or inefficient servants, whenever, in its opinion, it may be necessary to do so. It is true that appellant undertook to reinstate any engineer who shall be discharged from its service, whenever, upon his complaint, its master mechanic and superintendent, and an engineer selected by him, shall, upon investigation, decide that the discharge was or is unjust. But if we assume that this stipulation is void because it is contrary to public policy, it may be eliminated without affecting the remainder of the contract; for it is separate and distinct from, and independent of, the other promises of the railroad company, which are legal, and the whole contract founded upon one lawful consideration,

-the services of appellee. If, therefore, it be illegal, it is void, and the remainder of the contract is valid; the rule in such cases being Evidence was adduced in the trial on the that, "where the consideration is tainted by part of the plaintiff to show that he was dis- no illegality, but some of the promises. . charged without sufficient cause, and on the are illegal, the illegality of those which are part of the defendant that the explosion of the bad does not communicate itself to or conboiler was occasioned by the negligence of taminate those which are good, except where, the plaintiff in permitting the water to get too in consequence of some peculiarity in the conlow, and for that reason he was discharged. tract, its parts are inseparable, or dependent The court, over the objection of the defend-upon one another.' Western U. Teleg. Co. v. ant, instructed the jury at the request of the plaintiff, as follows:

Burlington & S. W. R. Co. 3 McCrary, 130, 11 Fed. Rep. 1; State, Laskey, v. Perrysburg Bd. of Edu. 35 Ohio St. 519; Erie R. Co. v. Union Locomotive & Exp. Co. 35 N. J. L. 245; Corcoran v. Lehigh & F. Coal Co. 138 Ill. 390; Peltz v. Eichele, 62 Mo. 171; Dean v. Emerson, 102 Mass. 480; Clark, Contr. p. 474.

"1. If you find that the plaintiff was discharged from the service of the defendant because of the blowing down of the crown sheet of the engine of which he was in charge, and that said crown sheet was not blown down in consequence of his misconduct, then But appellee is not seeking to enforce the you will find for the plaintiff, and will assess article as to arbitration. He has abandoned his damages at the sum which he might rea that, and now asks for compensation for the sonably be expected to have earned under his damages occasioned by his discharge. Ascontract with the defendant down to the time suming that he can waive the arbitration, is of this trial, deducting such sums as he, by he entitled to recover? That depends upon reasonable diligence, might have earned in the terms of his contract. This brings us at similar business; but the burden of proof is once to inquire what the stipulations of the on the defendant to show that the plaintiff contract were. As said by Mr. Justice Strong might have obtained other similar employ-in Coffin v. Landis, 46 Pa. 431: "It matters ment."

At the request of the defendant the court instructed the jury as follows:

"The court charges the jury that, if they find from the evidence that plaintiff was careless in the handling of his engine, and that such carelessness contributed to cause the said engine to blow down its crown sheet, then the discharge of said plaintiff by defendant railway company was not a violation of the con

not what, in our opinion, would have been a reasonable arrangement, nor what it may be supposed the parties anticipated, nor whether the plaintiff's early discharge was a hardship to him. The true question is, What was the contract? To what did the parties bind each other? We are not at liberty to make contracts for them, or to add any stipulations which they have not seen fit to incorporate. We cannot give to a mere expectation the

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1897.

ST. LOUIS, I. M. & S. R. Co. v. MATHEWS.

sanction, or the binding force of a covenant."

an

Appellee, for a stipulated consideration, agreed to serve appellant in the capacity of engineer. There was no contract as to the time he should continue to serve. Appellant agreed to pay him according to certain rates for his services, not to discharge him without just cause, to promote him according to certain grades of service, and, when it saw fit to reduce the number of its engineers, to discharge them in the order of their juniority in service, first discharging the youngest, and then the next, and so continuing until the number should be sufficiently reduced. There might have been in these promises an implied undertaking on the part of appellant to retain appellee in its service so long as he should serve it acceptably as an engineer, unless he should be sooner discharged in the manner indicated. But we fail to discover any evidence of an agreement on the part of appellee to serve Hence there was no any specified time. contract that he would serve, and that the appellant would employ him, for any stated time, the agreement of both being necessary to fix the time of service,—and, consequently, no violation of a contract by the discharge of appellee before the expiration of any particular time.

tion, or to pay him any compensation after
reasonable notice that they should no longer
require his services."

cause.

"

In East Line & R. River R. Co. v. Scott, 72 Tex. 70, the agreement alleged was "that the said company thereafter, when this plaintiff should ask for and accept service and employment by the said company in the running and operating its said railroad, in the employment of locomotive engineer, that this being and still is the trade, occupation, and profession of your petitioner, would employ petitioner for whatever length of time your petitioner might desire to retain such employment, and at the reasonable and customary pay and wages of such employee on railroads, which then was and still is from $100 to $150 per month,' etc. The court in speaking of this contract, said: "We must take the contract as alleged in the petition to be the contract on which appellee must recover, if at all; and, looking to that, there can be no doubt that whether appellee should serve the appellant, and the term of such service, depended upon his own will. It is very generally, if not uniformly, held, when the term of service is left to the discretion of either party, or the term left indefinite, or determinable by either party, that either Harper v. Hassard, 113 Mass. 187; may put an end to it at will and so without Quotations from the opinions of courts in a Coffin v. Landis, 46 Pa. 431; Wood, Mast. & few cases will add force to and explain what S. 133, 136, and citations. When such a state we have said. In Harper v. Hassard, 113 of agreement exists it is no breach of conMass. 188, Chief Justice Gray, speaking for tract to refuse to receive further services; and the court, said: "The written agreement in the refusal to accept any at all, it would seem, which the parties have expressed the con- at most would entitle the engaged servant tract between them, and by the construction only to nominal damages. If the pleadings of which this case must be determined, con- of appellee be accepted as true, there can be sists of, 1, a recital that the defendants intend no doubt that there was an agreement that to carry on the business of making oil and appellant would give employment to appellee; water colors, and wish to secure the services but, as the period for which this should be of the plaintiff in the making of said colors; done was dependent on the will of appellee, 2, an agreement of the plaintiff with the de- to be exercised in the future, there was no The minds of the fendants that he will, during the term, not ex- contract binding appellant to employ appelceeding three years from the date of this agree- lee for any fixed period. ment, render and give his exclusive time, parties had not met as to a material element service, skill, and energy to them in the manu- of the contract to which the agreement looked facture of oil and water colors, and also in--the period of service." In Bolles v. Sachs, 37 Minn. 315, the parties struct and teach them during the said term the art of manufacturing or making colors in executed an agreement in writing "whereby, all its details, so far as it is in his power to for the expressed consideration of the agreedo so; 3, in consideration of the above, an ment of the plaintiff to conduct the business agreement of the defendants 'during said term' of the defendants, selling such goods at Minto pay to the plaintiff thirty dollars per week neapolis as provided in that instrument, the as compensation for his services so rendered;' defendants agreed, for so long a time as the 4, an agreement of the plaintiff that he will plaintiff might elect, to employ the plaintiff in not, 'during the continuance of this agreement, that business; agreeing also that the plaintiff be connected with any other persons in the should have absolute and sole control of the There is no business, and that the defendants would not emmanufacture of colors. express agreement of the defendants to employ any other agent or sell their goods to any ploy the plaintiff for three years, and no stip- other person. The defendants further agreed ulation from which, in our judgment, such by this instrument to pay to plaintiff $2,000 an agreement can be implied. The agree-out of the first moneys collected from the acment appears to have been framed and adapted counts of the firm of Bolles & Co., . . . and as to secure to the defendants the right to the compensation for such employment, to pay to exclusive services of the plaintiff for such the plaintiff one half of all the, profits to be time, not extending beyond three years from derived from the business conducted by the its date, as he should perform such services, latter," who agreed to conduct and manage it paying him the stipulated compensation to the best of his ability. No period was weekly, so long only as he should be em-specified for the continuance of the service of ployed by and faithfully serve them; but not the plaintiff. He was discharged. He then to oblige them to continue the business, or to brought an action, and recovered about $1,100 employ him therein, except at their own elec-on account of an alleged breach of the con

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tract. The court said: "The period of serv-| Co. v. Scott, an engineer (whether while in the ice or agency was left expressly and entirely to plaintiff's election; and in view of this it is most reasonable to construe the plaintiff's engagement to manage the business to the best of his ability, etc., not as qualifying | his right of election, but as meaning that during such time as he may elect to carry on the business he will do so to the best of his ability. There was not, then, any obligation on the part of the plaintiff to enter upon the employ-ployment in his line for such time as he might ment; and, unless the agreement of the defendants to employ him is supported by some other consideration, it would not be obligatory upon them, but might be revoked before the other party had acted upon it. But here we come to a difficulty which must avoid the verdict, involving. as it does, a receiving of some $1,100 for the breach of this agreement. The damages so assessed consisted of the supposed loss of the profits of the business for a little more than a year intervening between the time of the plaintiff's discharge and the time of the trial. The difficulty to which we refer is the want of certainty in the contract respecting the period of service. The contract was, perhaps, effectual to give to the plaintiff the option to himself fix the duration of it; but unless he exercised that election, and actually determined the period so as to make certain that which, by the terms of the contract, was uncertain, he could recover only for the period of his actual service. He could not recover, as damages for the breach of the contract, the profits or remuneration which the business might have yielded during any period beyond the time when the contract was broken and the employment terminated."

employ of the defendant company or not he received the injury is not stated) sued the company for personal injuries, laying his damages at a certain amount; and before the termination of the suit it was compromised by the defendant paying plaintiff the sum of $4,500, and, as the plaintiff claims in addition to this, the defendant, as part of the consideration of the compromise, was to furnish plaintiff emdesire; and when the plaintiff demanded to be employed under this agreement, defendant refused to employ him, and the plaintiff sued for such refusal, laying damages in the sum of $20,000. There was judgment for plaintiff in the sum of $2,400, and defendant appealed to the supreme court of Texas, where the same was reversed mainly on the ground that the contract sued on was too indefinite, and wanting in mutuality, the plaintiff having the election and choice for fixing the period for his services to continue, and failed to exercise that choice; thus leaving the courts without definite basis upon which to found a judgment, as in that case, for damages for refusal to employ as agreed, which case demanded the same definiteness and clearness of proof as if the prayer had been for specific performance of the contract; and a lengthy discussion is indulged as to the doctrine of mutuality in contracts in general. The case of Rolles v. Sachs went off on pretty much the same course of reasoning as the case of East Line & R. River R. Co. v. Scott, and was somewhat the stronger, because the nature of the employment was necessarily less permanent than the other, in the very nature of things. The case at bar is quite different, and therefore the authorites cited by the majority of the court, in my opinion, are more or less inapplicable, principally because they are decisions in which it was not necessary for the courts rendering them to look away from the mere letter of the law, formulated in a different age, and in times when men's conditions as respect labor and employment, to the changed condition of things and circumstances by which we are now surrounded. The case at bar is not for refusal to employ, but for discharging unjustly and without a cause, which the contract forbade, and for refusing to keep the agreement to investigate the causes of discharge, and reinstate if found to be proper. The plea of want mutuality in the contract or agreement sued on is simply to the effect that a railway company cannot obligate The judgment in this case is reversed itself to keep a competent engineer in its mainly, if not altogether, on the ground of a service for life, or as long as its business conwant of mutuality in the contract or agree- tinues, and it needs the services of such a ment sued on, in this: that the said contract, one, because that one may have the option to while it in effect binds the appellant company quit its service when his business, convento give the appellee permanent or life employ-ience, or pleasure may move him to do so. ment, with certain exceptions, it does not compel the appellee to continue in its service for any particular period, or to continue at all. In support of this theory the majority of the court cites, and mainly relies upon the rule of the common law as stated in East Line & R. River R. Co. v. Scott, 72 Tex. 70, and Bolles v. Sachs, 37 Minn. 315,-the first a railroad case, and the other a trader's employment case, and some cases therein cited. In East Line & R. River R.

For the reasons given, we conclude that there was no breach of the contract, in the case before us, by the discharge of the appellee before the expiration of any particular period of time, and that he was not entitled to recover any sum except compensation for actual service. As the instruction given by the circuit court at the request of appellee is in conflict with this conclusion, the judgment against appellant must be reversed, and it is so ordered, and the cause is remanded for a new trial.

Hughes, Wood, and Riddick, JJ., con

cur.

Bunn, Ch. J., dissenting (Filed ber 27, 1897):

Novem

I do not care to worry the profession with a lengthy argument on this subject; but in support of my dissent I beg leave to refer to and adopt the decision in the case of Carnig v. Carr, 167 Mass. 544, 35 L. R. A. 512, and especially the very copious notes thereunder, wherein, I think, the position of the court is successfully overturned. I cannot refrain from expressing the opinion that the decision in this case is more far-reaching than any that

has been rendered by this court in a long time. I am of the opinion that the contract or agreement sued on is not only not objectionable for want of mutuality, but, on the contrary, is the result of the best thought of men, both professional and practical, whose lives have been devoted to the peculiar and wonderfully complicated and intricate business of operat

ing modern railways. It is, in fact, a necessity to the employee, and an advantage to the employer's business at the same time, that some such arrangement be had between them; and I think it should be embodied in their contracts rather than in attempts at legislation on the subject, for obvious reasons.

WASHINGTON SUPREME COURT.

H. O. SHUEY, Receiver of Seattle Savings | Ann. 144; Westman v. Krumweide, 30 Minn.

Bank, Respt.,

v.

George B. ADAIR, Appt.

313, and cases cited in opinion.

The fact that the contract was one which the statute of frauds requires to be in writing makes no difference. Such a contract may be signed for the principal by a person thereunto lawfully authorized, and though the agent sign his own name alone, the principal may still be charged by parol evidence. Mechem, Agency, § 449, and cases cited; 2. The sole apparent maker of a note Neaves v. North State Min. Co. 90 N. C. 412,

1. Oral evidence is inadmissible to show that the maker of a note was only an agent and

signed it under an agreement with the payee that the principal only should be liable.

when sued thereon is not entitled to have his alleged principals brought in as defendants. 3. An agent who made a note in his own name is not released by an agreement after its maturity between the payee and the principal for the substitution of the latter's note, when

this was never made.

(December 6, 1897.)

47 Am. Rep. 529.

Ballard, Holmes, Rinehart, & Robertson became by their promise to and agreement with the bank the principal debtors, and the indebtedness evidenced by the note became their own.

1 Brandt, Suretyship & Guaranty, SS 55, 56, 67, 70, 77; McLaren v. Hutchinson, 22 Cal. 188, 83 Am. Dec. 59; Fowler v. Clearwater, 35. Barb. 143; Barringer v. Warden, 12 Cal. 312;

Durham v. Manrow, 2 N. V. 533,

APPEAL by defendant from a judgment of
the Superior Court for King County in
favor of plaintiff in an action brought to en-
force payment of a promissory note. Affirmed.
The facts are stated in the opinion.
Messrs. McCutcheon & Gillian, for ap-Surety, p. 67, and cases cited.
pellant:

The actual credit was given by the bank to Ballard, Holmes, Rinehart, & Robertson, and to them alone.

It may be shown "that the principal was doing business in the agent's name.] Such was the case here. The agency was disclosed to the bank and it had full knowledge of the true relations of the parties.

Brockway v.Allen, 17 Wend. 40; Whitney v. Wyman, 101 Ú. S. 392, 25 L. ed. 1050.

Both parties understood and meant that the contract was to be and in fact was between the bank and Ballard, Holmes, Rinehart, & Robertson, and not with Adair.

Hill v. Ely, 5 Serg. & R. 363, 9 Am. Dec. 376; Mechanics' Bank v. Bank of Columbia, 18 U. S. 5 Wheat. 326, 5 L. ed. 100; Michels v. Olmstead, 14 Fed. Rep. 219, and note; Dix v. Akers, 30 Ind. 431; Rawlings v. Fuller 31 Ind. 255; Small v. Smith, 1 Denio, 583; Kost v. Bender, 25 Mich. 515; 1 Dan. Ch. Pr. 4th Am. ed. 230, 231; 3 Randolph, Com. Paper, SS 1875 et seq.; Edwards, Bills & Notes, p. 316; Murray v. Reed, 17 Wash. 1; Scott v. Armstrong, 146 U. S. 499, 36L. ed. 1059; Metcalf v. Williams, 104 U. S. 99, 26 L. ed. 667; Merchants' Exch. Bank v. Luckow, 37 Minn. 542; Roberts v. Austin, 5 Whart. 313; Milligan v. Lyle, 24 La. NOTE. For extrinsic evidence to show who is liable as the maker of a note, see Keidan v. Winegar (Mich.) 20 L. R. A. 705, and note. See also Bulkeley v. House (Conn.) 21 L. R. A. 247.

De Colyar, Guaranties and Principal &

They were subserving a pecuniary and business purpose of their own, and were not attempting to answer for the debt of another.

Farley v. Cleveland, 4 Cow. 437, 15 Am. Dec. 387; Low v. Treadwell, 12 Me. 441; Rogers v. Kneeland, 13 Wend. 114; DeColyar, Guaranties and Principal & Surety, p. 137 et seq.; Kingsley v. Balcome, 4 Barb. 131; Emerson v. Slater, 63 U. S. 22 How. 28, 16 L. ed. 360; Davis v. Patrick, 141 U. S. 479, 35 L. ed. 826; Mitchell v. Beck, 88 Mich. 342.

The receiver has no greater right in the premises than the bank would have had if it had sued upon the note.

Brown v. Toledo, P. & W. R. Co. 35 Fed. Rep. 444; Easton v. Houston & T. C. R. Co. 38 Fed. Rep. 784; Scott v. Armstrong, 146 U. S. 499, 36 L. ed. 1059.

All questions pertaining to a note or the giving of the same can be litigated between the original parties, where the note has not been transferred.

Lockwood v. Coley, 22 Fed. Rep. 192, and note; Kost v. Bender, 25 Mich. 515.

The act of the agent was further ratified by Ballard, Holmes, Rinehart, & Robertson at the time they agreed to and with the bank to substitute a note signed by them for and in the stead of the note sued upon.

Conro v. Port Henry Iron Co. 12 Barb. 53.

Messrs. Clise & King, for respondent: Where an agent contracts in his own name and pledges his own credit, he will bind himself.

1 Am. & Eng. Enc. Law, pp. 388, 403, and authorities cited.

whether he was in fact a pledgee, agent, or trustee for the real owner.

Baines v. Babcock, 95 Cal. 581; Germania Nat. Bank v. Case, 99 U. S. 631, 25 L. ed 449; Thompson v. Reno Sav. Bank, 19 Nev. 103.

Dunbar, J., delivered the opinion of the court:

The English rule is that in cases in which the note is signed by the agent, and the suit is against him, he is personally liable, and that The appellant executed to the Seattle Sav. proof is not admissible as between the makerings Bank the following note: and the payee, to show that the latter knew the representative character of the signer and accepted the paper as the principal's contract.

Byles, Bills, 6th ed. 37.

The rule in the United States is: Upon a negotiable promissory note, made by an agent in his own name, and not disclosing on its face the name of the principal, no action lies against the principal.

Nash v. Towne, 72 U. S. 5 Wall. 689, 18 L. ed. 527; Cragin v. Lovell, 109 U. S. 198, 27 L. ed. 905.

A person not a party to a promissory note cannot be charged upon parol proof that the ostensible party signed or indorsed as his agent.

Davis v. England, 141 Mass. 587; Wing v. Glick, 56 Iowa, 473, 41 Am. Rep. 118; Briggs v. Partridge, 64 N. Y. 358, 21 Am. Rep. 617; Hypes v. Griffin, 89 Ill. 134, 31 Am. Rep. 71; Bank v. Cook, 38 Ohio St. 442; Bryan v. Duff, 12 Wash. 235.

Where an agent contracts in his own name, and does not disclose his principal, the principal having the right to sue, is also, when discovered, liable to a third party on the contract. The third party may elect whom he will sue. And the same rule holds good when the agent discloses his principal at the time.

1 Am. & Eng. Enc. Law, p. 416, and authorities cited; Crum v. Boyd, 9 Ind. 289; 3 Thomp. Corp. § 3905.

Parol testimony is not admissible for the purpose of showing that the signer of a promissory note was not intended by the parties to be liable in any capacity.

Tacoma Mill Co. v. Sherwood, 11 Wash. 493.

This secret agreement alleged to have been entered into between Mr. Adair and a number of the trustees of the bank was not a defense to the receiver's cause of action.

To hold that one could have stock issued to him and allow the same to stand in his name upon the books of the bank, and yet by a secret agreement with such bank be released from all liability growing out of the issue of such stock, would be contrary to the provisions of our statutes and to public policy.

Barto v. Nix, 15 Wash. 569: Scoville v. Thayer, 105 U. S. 143, 26 L. ed. 968; Allibone v. Hager, 46 Pa. 48; Gogebic Invest. Co. v. Iron Chief Min. Co. 78 Wis. 427; Union Mut. L. Ins. Co. v. Frear Stone Mfg. Co. 97 Ill. 537, 37 Am. Rep. 129; Hospes v. Northwestern Mfg. & Car Co. 48 Minn. 174, 15 L. R. A. 470.

One to whom stock is issued by the corporation, and who has the same placed in his name on the corporation books as owner, is liable to the creditors of the corporation, as though he were the absolute owner; and this

2,000.00.

Seattle Wash., May 6th, 1892. One year after date, without grace, for value received, I promise to pay to the order of the Seattle Savings Bank, at the banking house of said bank, in the city of Seattle, the sum of two thousand dollars, with interest at the rate of ten per cent per annum, payable semiannually, from date hereof until paid. And if suit shall be commenced for the recovery of any amount due upon this note, I agree to pay an attorney's fee of fifty dollars. Geo. B. Adair,

P. O. Address, City, No. 230. Due May 6th, 1893.

This note was discounted by the bank to Ballard, Rinehart, Holmes, & Robertson; and the proceeds thereof, the sum of $2,000, were paid by the bank to the above-named parties. În course of time, after the maturity of the note, the bank sued the appellant, the maker of the note. The essential parts of the amended answer were as follows: "(3) That at the time said note was so discounted as aforesaid, and in consideration thereof, and of the payment of the said proceeds to them, said Ballard, Rinehart, Holmes, & Robertson, agreed to and with said bank and this defendant that they, the said Ballard, Rinehart, Holmes, & Robertson, would within a few days thereafter take up the said note, and pay the amount thereof to said bank. (4) That, at and before the discount of said note as aforesaid, said bank well knew that the same was made and executed by the defendant so as aforesaid for and in behalf of said Ballard, Rinehart, Holmes, & Robertson, and not otherwise, and that the proceeds thereof were to be used by, and for the sole benefit of, the said Ballard, Rinehart, Holmes, & Robertson, and that it was discounting the same for, and for the sole benefit of, the said Ballard, Rinehart, Holmes, & Robertson, and the said defendant received no part of the consideration thereof. And the said bank then and there agreed to and with defendant and said Ballard, Rinehart, Holmes, & Robertson that it, the said bank, would look to the said Ballard, Rinehart, Holmes, & Robertson for the payment of said note, and that this defendant should never at any time be held by said bank liable upon or for the note so made by him as aforesaid, nor be called upon to pay the same. And the said bank, pursuant to said agreement, has never asked said defendant to pay said note, or any part thereof, but, on the contrary, has at all times held the said Ballard, Rinehart, Holmes, & Robertson liable and responsible to it to pay the same, pursuant to the said agreement so made as aforesaid when said note was discounted by it. (5) That there was no other

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