affected the plaintiff's power to discount the note before it was due, and the probability of their getting payment from another whom the defendant might be able to persuade to indorse, when he could not or would not induce her to pay if she had not indorsed. As the contracts were both in existence, and were different, and as they were both broken, it is plain that the plaintiffs have had two different causes of action, and there is no need to refer to the tests of difference which have been laid down in the books: Eastman v. Cooper, 15 Pick. 276, 286; 26 Am. Dec. 600; Lechmere v. Fletcher, 1 Cromp. & M. 623, 636. The question arises solely on the effect of the judgment.

What we mean when we say that a contract is legally binding is, that it imposes a liability to an action unless the promised event comes to pass, subject to whatever qualifications there may be to the absoluteness of the promise. Generally, if a man is content to make two legally binding contracts, he consents to accept the legal consequence of making two instead of one; namely, liability to a judgment upon each unless he performs it. It would be anomalous if a judgment without satisfaction upon one cause of action were held to be a bar to a suit upon another and distinct cause of action. No doubt, two contracts may be such that performance of one of them, or satisfaction of a judgment upon one of them, would prevent a recovery upon the other, either altogether or for more than nominal damages. In this commonwealth the decisions have gone somewhat further than elsewhere in treating satisfaction of one judgment as an absolute bar to another action: Gilmore v. Carr, 2 Mass. 171; Savage v. Stevens, 128 Mass. 254. But instances are too numerous and familiar to need extended mention, where the mere recovery of a judgment is held no bar to another action, although the satisfaction of it would be: Simonds v. Center, 6 Mass. 18; Porter v. Ingraham, 10 Mass. 88; Elliott v. Hayden, 104 Mass. 180; Byers v. Franklin Coal Co., 106 Mass. 131, 136. This principle is applied not only to actions against different parties, such as the maker and indorser of a note, or joint tort-feasors, but to actions against the same individual, when he has given different obligations in respect of what is in substance the same debt. Thus judg ment upon a note given by an obligor as collateral security for his bond is no bar to a subsequent action upon the bond: Lord v. Bigelow, 124 Mass. 185, 189; Drake v. Mitchell, 3 East, 251;

Lechmere v. Fletcher, 1 Cromp. & M. 623; Fairchild v. Holly, 10 Conn. 474; Davis v. Anable, 2 Hill, 339; Burnheimer v. Hart, 27 Iowa, 19; 99 Am. Dec. 641. See Greenfield v. Wilson, 13 Gray, 384; Moore v. Loring, 106 Mass. 455; Miller's River National Bank v. Jefferson, 138 Mass. 111; Stillwell v. Bertrand, 22 Ark. 379; Corn Exchange Ins. Co. v. Babcock (No. 2), 8 Abb. Pr., N. S., 256; United States v. Cushman, 2 Sum. 426, 440.

The principle of the cases last cited is decisive of the one at bar. No distinction favorable to the defendant can be taken between an agreement made as itself collateral security, and an agreement to furnish collateral security. If there were any difference, it would be in favor of the plaintiffs; for the collateral contracts recovered on in the cases cited were simply other contracts of the defendant to pay money, whereas the contract of this defendant was a contract to get a third person to indorse, as we have stated. It is true that in most of the cases there were other parties defendant in the first or second suit. But that circumstance had nothing to do with the ground of the decisions, as indeed it could not have had by any technical rule. The ground was that stated by Lord Ellenborough in Drake v. Mitchell, 3 East, 251, and approved by this court in Lord v. Bigelow, 124 Mass. 185, 189: "A judgment recovered in any form of action is still but a security for the original cause of action, until it be made productive in satisfaction to the party; and therefore till then it cannot operate to change any other collateral concurrent remedy which the party may have." Parsons, C. J., states the law in the same way: "A judgment in a suit, where the action is given as a remedy merely cumulative, is no bar, unless such judgment has been satisfied; for although there may be two remedies, there can be but one satisfaction": Storer v. Storer, 6 Mass. 390, 393.

The technical effect of the judgment as a bar would be the same, whether the defendant in both suits were the same, or other defendants were joined in any one of them. The rule as stated by the courts in all the cases applies with equal force, whichever may be the fact. If we were to depart from that rule, and to say that a man should have but one judgment, although he had different causes of action, when we thought he could get from a single judgment all the satisfaction he was likely to get, we should be legislating, instead of follow

ing the precedents, and legislating in very doubtful accord with the contracts of the parties.

Exceptions sustained.

JUDGMENTS-MERGER. As to when a cause of action is merged in a judgment, and when not, see note to Speed v. Hann, 15 Am. Dec. 81–83.

FREEMAN'S NATIONAL BANK V. NATIONAL TUBE WORKS COMPANY.

[151 MASSACHUSETTS, 413.]

INDORSEMENT OF DRAFT FOR THE PURPOSE OF COLLECTION ON ACCOUNT OF ITS OWNER passes the legal title so far only as to enable the indorses to demand, receive, and sue for the money to be paid. The owner may still control the paper, unless paid, and may intercept the proceeds of it in the hands of the intermediate agent. INDORSEMENT OF A DRAFT BY BANK A TO BE PAID TO BANK B FOR ACCOUNT OF BANK A, and its indorsement by bank B that it is to be paid to bank F for account of bank B, do not imply that the draft is the property of bank B, but merely that it is to be paid to bank B as agent of bank A. An unbroken succession of such indorsements would indicate that each indorser was acting by direction of the next preceding indorser, who was himself the agent of the original owner, for whom the collection was to be made; and when it is made to the last indorsee, he has no right to apply it as having been the property of the last indorser, and if it remains uncollected to advance him moneys on account of it, and to enforce its collection as against the equitable owner to reimburse himself for such advances.

ACTION of contract upon one draft for twenty thousand dollars, the other for nine thousand nine hundred dollars, and for Beven thousand dollars alleged to be paid for defendant's use. The first and second drafts were identical, except as to the amounts thereof, and the first draft and the indorsements thereon were as follows:

“20,000.

MCKEESPORT, PA., May 17, 1884.

"At sight, for value received, pay to the order of A. Chaudon twenty thousand dollars, and charge this office as per margin. "NATIONAL TUBE WORKS Co.,

By E. C. CONVERSE, Asst. Mgr., for President. "To WM. 8. EATON, Treas., 8 Pemberton Square, Boston, Mass."

Across the face of each draft was the following: "May 19-84. Accepted, E. R. Hall, Asst. Treas."

The drafts bore the following indorsements successively: —

"Pay to the order of C. R. Stuckslager, Cashier. A. Chaudon."

"Pay Penn Bank, or order, for account of People's Bank, McKeesport, Pa. C. R. Stuckslager, Cashier. T. D. Gardner, As. Cash."

"Pay Freeman's National Bank, Boston, or order, for account of Penn Bank, Pittsburgh, Pa. C. L. Reiber, Cashier." When the drafts sued upon were drawn, Edward C. Converse was the assistant general manager of the defendant at McKeesport, Pennsylvania, and A. Chaudon was a clerk in its employ. The drafts were drawn without any consideration and were deposited in the People's Bank of McKeesport, of which C. R. Stuckslager was cashier, in which bank the defendant had an account by its officers on its behalf. The drafts were at once sent by the People's Bank to its correspondent, the Penn Bank of Pittsburgh, indorsed as shown above, accompanied by a letter stating "We indorse for collection and credit." The People's Bank did not pay the drafts, nor make any advances or give any credit thereon, or make any entry of them in its books, though it acknowledged their receipt in a letter of which it kept a pressed copy, saying that such drafts were entered for collection, "to be used when paid." The drafts were not charged to the Penn Bank by the People's Bank, nor did the latter draw anything on account thereof. They were, however, entered on the books of the Penn Bank to the credit of the People's Bank, and to the debit of the plaintiff bank, in the mode in which it entered all cash items in its current account with those banks, but nothing was paid thereon. On the same day, May 17th, the Peun Bank sent the drafts to the plaintiff, which was its correspondent at Boston, accompanied by a letter stating that the drafts were inclosed for collection, and on the same day drew a check on the plaintiff bank to the order of the American Exchange Bank for seven thousand dollars and credited the amount to the plaintiff. The plaintiff received the drafts on May 19th, and they were accepted by the defendant on the same day. The day afterwards, the check of the Penn Bank for seven thousand dollars reached the plaintiff and was paid by it. At the close of business on May 19th, there was upon the books of the plaintiff bank a balance to the credit of the Penn Bank of $1,238.95, while at the close of business on May 20th, the balance to the debit of the Penn Bank was $6,063.76. The plaintiff entered the drafts upon its collection-book, but

not upon its account current, nor upon any other book or account, to the credit of the Penn Bank. The latter, on the 21st or 22d of May, failed, and the defendant's treasurer was notified by the People's Bank and by the manager of the defendant not to pay the drafts. Payment was thereupon refused. The object of drawing the drafts was to procure funds from Boston. to pay the expenses of the defendant at its mills at McKeesport, and every month drafts were drawn in similar form and for similar purpose, generally exceeding one hundred thousand dollars, and were indorsed in precisely the same way and passed through the same banks. Neither of the drafts was collected by the plaintiff, but it brought action thereon against the defendant, by which they had been accepted.

W. G. Russell and J. Fox, for the plaintiff.

E. W. Hutchins and H. Wheeler, for the defendant.

KNOWLTON, J. The indorsement from the defendant to the People's Bank, although in terms unrestricted, was without consideration, and merely for the purpose of collection. The People's Bank became the agent of the defendant, and the defendant, as owner of the drafts, can avail itself of all that its agent did for its protection.

The subsequent indorsements through which the drafts came to the plaintiff were both restrictive, giving notice that the ownership had not passed beyond the People's Bank. They purported to be made only for the purpose of collection on account of the owner, and they merely passed the legal title so far as to enable the indorsees to demand, receive, and sue for the money to be paid: Lynn National Bank v. Smith, 132 Mass. 227. It is well settled that upon such an indorsement the owner may control his negotiable paper until it is paid, and may intercept the proceeds of it in the hands of an intermediate agent: Manufacturers' National Bank v. Continental Bank, 148 Mass. 553; 12 Am. St. Rep. 598, and cases there cited. The indorsement of the Penn Bank, taken in connection with the former indorsement of the People's Bank, did not, by the words "for account of Penn Bank," imply that the Penn Bank was the owner. It was a request to pay "for account of" the Penn Bank as agent of the People's Bank. An unbroken succession of such indorsements would indicate that each indorser was acting by direction of the next preceding indorser, who was himself an agent of the owner, who had before indorsed, and for whom the collection was to be made.