It is against the whole tendency of the language used to say that there was no obligation on the part of the agent to go on and make out the necessary renewal papers until the plaintiff again called upon him and tendered him the premium, and demanded them of him. If such construction be given then there would seem to be no reason for the conversation at all, as it all amounted to nothing, unless further negotiations were had. It seems to me a just inference from the conversation that the plaintiff was to leave presently, to be absent for a week or ten days, and that he desired to have the property insured before he left.

The fact that he was about to leave was made a prominent reason for making the agreement to insure them. There would be no sense in the plaintiff making importance of the fact that he was to be absent about eight or ten days, as a reason for negotiating for insurance, if he did not intend to be insured until he returned. Without further discussing the evidence on the facis, I am of the opinion that there was a contract on the part of the defendant's agent to insure the plaintiff's buildings presently, and that such contract binds the defendant; or, at least, there was sufficient evidence to sustain this view of the case to carry the case to the jury, and that it was error on the part of the court below to take the case from the jury and direct a peremptory nonsuit.

CHARLES HOEFLINGER, Appellant, vs. DANIEL WELLS, Jr., surviving partner of the firm of STAFFORD & WELLS, Respondent.

Filed November 28, 1879.

1. The taking, not as payment, of the individual note of one partner for money loaned, though it may be evidence that the loan was not made to the firm, is not conclusive of that fact.

2. Where such individual note of one partner is taken for a loan made at the time to the firm, the presumption is that it was not taken as payment. A remark of DIXON, C. J., in Ford v. Mitchell, 15 Wis., 304, doubted, but distinguished.

3. The complaint avers, in substance. that on, etc., S., as partner in the then existing firm of W. & S., borrowed from plaintiff, for and on account of and for the use of said firm, a certain sum, which loan was evidenced by a note for the amount signed by S., dated on the same day, and that the money so loaned was expended for the use of the firm. Held, that under these averments plaintiff may show that the money was loaned by him to and upon the credit of the firm. There is no admission that the note was taken in payment, and the complaint is good on demurrer.-[STATE REP.

Appeal from Milwaukee circuit court.

James Hickcor, for appellant.

Wells & Brigham, for respondent.

TAYLOR, J. This is an appeal from an order of the circuit court of Milwaukee county, sustaining a demurrer to the plaintiff's complaint on the ground that it does not state facts sufficient to constitute a cause of action.

The complaint alleges that at the time the indebtedness accrued, for the recovery of which this action was brought, one Michael Stafford and the defendant Wells were copartners, and did business as such at the city of Wausau, in this state, and that previous to the bringing of this action the said Stafford died, leaving the defendant Wells his sole surviving partner.

The following are the material allegations as to the indebtedness:

"That on or about the tenth day of April, 1873, at said city of Wausau, Wisconsin, the said Michael Stafford, as such copartner, borrowed from the plaintiff, for and on account of and for the use of said firm, the sum of $1,500, with interest at the rate of 10 per cent. per annum till paid; that the money so loaned by the plaintiff to said Stafford for and on account of said firm was evidenced in writing, signed by the said Stafford, and was a note for $1,500, and was dated April 10, 1873, and drew interest at the rate of 10 per cent. per annum until paid."

There are other allegations showing that the money borrowed was expended for the use of the firm. It is insisted by the learned counsel for the respondent that the foregoing allegations of the complaint show that the money was borrowed by and loaned to said Stafford by the plaintiff upon the sole credit of said Stafford, and not upon the credit of the firm, and, therefore, no cause of action is stated against the defendant. We do not think this a just construction of the complaint. The language above quoted, construed liberally in favor of the plaintiff, is that Stafford, as copartner of Wells, borrowed the money for the firm, and that the money was loaned to the firm and not to Stafford. Had it not been for the subsequent allegation that a note was given to the plaintiff for the amount of the money so loaned, signed by said Stafford, payable at a certain date, with interest as therein stated, there would have been no doubt as to the meaning of the first allegation. But it is insisted that this latter allegation shows that the plaintiff took the individual note of Stafford for the amount of the money loaned, and, therefore, shows

Conclusively that the loan was not made to the firm or upon its credit, but to Stafford, and upon his sole credit.

It might be urged against this construction given to the latter allegation that it does not clearly show that the note given was the individual note of Stafford; that the allegation that the note was signed by Stafford is not inconsistent with the fact that he signed it with the firm name.

But, admitting that the fair construction of the complaint is that the plaintiff took the individual note of Stafford for the amount of the money loaned, yet, in our view of the construction which must be given to the allegation as to the borrowing of the money, the giving of the individual note of one of the partners for the money borrowed by the firm would be no bar to a recovery against the firm after the note became due and remained unpaid.

If upon the trial the plaintiff can show that the money was borrowed for the firm, that he was at the time advised that it was for the firm, and that he loaned it to the firm and upon its credit—and, as we construe the allegations of the complaint, they are sufficient to admit such evidence-then the mere taking of the individual note of the one partner for the money so loaned will not defeat the action. The taking of such note may be evidence tending to show that the money was not loaned to the firm, and that the sole credit was given to Stafford, but it is not conclusive of that fact, and if the jury or the court should find as a fact that the money was borrowed by and loaned to the firm, and upon its credit, then the taking of the individual note of one member of the firm would not be a payment of such firm debt, unless it was affirmatively shown that such note was taken in payment of the same. Sheehy v. Mandeville, 6 Cranch. U. S. 256-264; Folk & Smith v. Wilson, 21 Md. 548-551; Glen v. Smith, 2 Gill & J. 508; Md. & N. Y. Coal & Iron Co. v. Wingert, 8 Gill, 176; Whitney v. Goin, 20 N. H. 354-358; Wright v. Crockery Ware, 1 N. H. 281; Johnson v. Weed, 9 John. 310; Schermerhorn v. Loins, 7 John. 311; Monroe v. Hoff, 5 Denio, 360-362; Porter v. Talcott, 1 Cow. 383; Vail v. Foster, 4 N. Y. 312-314; Muldon v. Whitlock, 1 Cow. 290-306; Breed v. Cork, 11 John. 241; Wilson v. Force, 6 John. 110; Reed v. Hutchinson, 3 Camp. 351-2; Owenson v. Morse, 7 T. R. 64; Loffe v. Gallagher, 3 E. D. Smith, 507; Blunt v. Walker, 11 Wis. 350; Ames v. Ames, 5 Wis. 160; Williams v. Starr, Id. 534; Davenport v. Schram, 9 Wis. 119; Eastman v. Porter, 14 Wis. 39; Ford v. Mitchell, 15 Wis. 304; Webster v. Stad

den, 14 Wis. 277; Lindsey v. McClelland, 18 Wis. 481; Williams v. Ketchum, 21 Wis. 432; Payne v. Voorhees, 21 Wis. 522; Aultman & Co. v. Jett, 42 Wis. 488; Aultman & Taylor Co. v. Hetherington, Id. 622.

The distinction suggested by the late learned Chief Justice Dixon, in his opinion in the case of Ford v. Mitchell, supra, as to the burden of proof where the note of a third person is received upon the sale of goods, or for an indebtedness contracted at the time, I am inclined to think is not supported by the weight of anthority; but if in such case the burden of proof would be upon the plaintiff to show that such note was not taken in satisfaction of the debt, it would not avail the defendant on this demurrer, as the allegation of the complaint, if construed as contended for by the defendant, negatives the idea that the note of the one partner was taken in payment of the loan to the firm. It is probable that the taking of the separate note of one of two joint debtors, for the joint debt,. would not come within the rule suggested by the learned chief justice in the case above cited. See Sheehy v. Mandeville and Muldon v. Whitlock, supra. The real question in the case is whether the loan was made to the firm instead of to Stafford. If it were made to the firm, then the taking of the several notes of Stafford was not a satisfaction of the debt of the firm, unless it was so agreed to be at the time of making the loan. We think the allegations of the complaint show that the loan was made to the firm, and the other allegations do not show that the note of Stafford was taken in satisfaction and payment thereof.

We think the complaint states a cause of action, and that the demurrer should have been overruled.

The order of the circuit court is reversed.

ABNER MELLEN and others, Appellants, vs. BERNHARD GOLDSMITH, Respondent.

Filed November 28, 1879.

If a creditor, after a verbal agreement with the debtor and with other creditors to join with the latter in executing a composition deed at a specified rate, and after such deed has been executed in pursuance of theagreement by such other creditors, refuses to sign it, he can recover only the rate fixed in such agreement.-[STATE REP.

Appeal from Milwaukee county court.
J. F. McMullen, for appellants.
Carpenter & Smiths, for respondent.

ORTON, J. There was testimony tending to show that the appellants verbally agreed with the respondent and his other creditors that they would compromise their claims against him, and sign a deed of composition for sixty cents on the dollar, in consideration and upon the condition that the other creditors would do so; and that the other creditors did so compromise and sign such deed, and the appellants refused to so do, and refused to accept such per cent. in satisfaction of their claim tendered for such purpose by the respondent.

The jury probably and very properly might have found their verdict upon this evidence, and this court ought not to disturb the verdict upon the mere weight or preponderance of the evidence.

The evidence relating to the proceedings of the creditors' meeting, and their action upon the proposition of the respondent, is not material, when it was shown--and it is not disputed that immediately thereafter all of the creditors except the appellants signed the composition according to the agreement, which the jury must be presumed to have found was so made by the parties and the other creditors.

The exceptions taken to the rulings of the court in admitting or rejecting testimony, and in giving or refusing to give instructions to the jury relating to such meeting or its proceedings, are therefore immaterial, and will not be further considered.

The instructions given clearly express the law upon the legal effect of such an agreement, and submit to the jury the question of fact; and, although there may be some clauses and abstract propositions of law not strictly correct, the charge taken together and fairly construed did not, we think, mislead the jury in the material question in the case.

The really important and only material question here is, was this agreement valid and binding upon the appellants, so that its performance by the other creditors and the respondent, in respect to their claims, and the offer of performance by the respondent in respect to the claims of the appellants, a valid defence to this action, brought to recover the full amount?

The validity of such an agreement does not depend upon the technical and strict rules which govern accord and satisfaction, release and discharge, but upon principles of equity, which treat the violation of or failure to cxecute such an agreement as a fraud not only upon the debtor, but more especially upon the other creditors, who have been v3—38 (no. v)

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