Bank, 159 Ill. 421, and Union Nat. Bank v. Post, 64 Ill. App. 404. These facts, presenting a very complete history of the litigation, may be gathered by a reference to the Reports. To again recite the facts in detail in this opinion would unnecessarily lengthen it and would serve no good purpose, therefore we state only such facts as the jury were warranted in finding from the evidence as the basis of their verdict sustaining appellee's right to a recovery.

"There was enough in the evidence to justify the jury in finding that appellant, the bank, received from appellee, Post, a promissory note for $25,000, made by James J. West, by his attorney in fact, payable to the order of James E. Munroe, and by him endorsed without recourse, which note was the property of Post, and was given by Post to appellant, the bank, to be held as collateral security to a note for $16,000, which evidenced a debt of Post to appellant, the bank; that the Union National Bank transferred the note to appellant Kelley; that afterward, and without the assent of Post, Odell, the president of the bank, acting, as he says, as agent of Kelley, exchanged the West-Munroe note for a note for the principal sum of $25,750, made by the Chicago Times Company, by West, its president, the amount of this note being for the principal and accrued interest on the WestMunroe note, which was surrendered in exchange; that this exchange was made by West and Odell as a payment of the West-Munroe note; that afterwards, and without the assent of Post, Odell again exchanged the Times company note for another note made by James J. West, for $25,000, and still again Odell exchanged this latter note, without the assent of Post, for the original WestMunroe note; that the proceeds of the original loan made upon the West-Munroe note were received by the Chicago Times Company, and that the Times company note for $25,750 was executed by West, its president, with authority, and was a valid and enforceable promissory note as against the Times company; that the Times company, at

the time of the maturity of the note, was solvent, and the note was collectible and worth its face value; that the West note and the West-Munroe note, taken by Odell in exchange for the Times company's note, were then wholly worthless by reason of the insolvency of West. Francis A. Riddle is beneficially interested by reason of the fact that, having been a surety upon the Post note for $16,000 and having advanced moneys for Post, he was made assignee of an interest of Post in the collateral note. This suit was brought by Post, for the use of Riddle, to recover from appellants the value of the collateral note deposited by Post with the bank, and paid by West to Odell by the giving of the Times company's note, less the amount due upon the $16,000 note."

The action was originally in trover, but was changed to case, and before the last trial two additional counts were added to the declaration. The first of these additional counts charged that the defendants took and accepted the Times-West note in payment of the WestMunroe note belonging to plaintiff and which the defendants held only as collateral security, and that they thereby became liable to pay the full amount of it, less the debt for which it was pledged. The second count alleged that the defendants took in exchange for the West-Munroe note the Times-West note, and then held said latter note in place of the former as collateral for plaintiff's indebtedness, and thereafter wrongfully surrendered said Times note without collecting the same.

On the trial the court, at the request of plaintiff, gave to the jury, among others, the following instructions:

6. "The jury are instructed that if they believe, from the evidence, that $25,000 was borrowed and the individual note of James J. West was given therefor, and further believe that a credit was given to said West on the Chicago Times Company's books for said amount, yet if the jury believe, from the evidence, that the said money was borrowed for the said Chicago Times Com

pany and was used in its business by its officers having the power and right to control and manage its business. affairs, and that by the direction of its said officers it received the full benefit and use of the identical money borrowed, then the indebtedness was in fact the indebtedness of the Chicago Times Company and it was lawful for the said Chicago Times Company to execute its note therefor, and, when executed and delivered, the same would constitute a valid, legal obligation of said company, and it was lawful for said company, by and with the consent of the holder of the said individual note of the said West, to deliver its said note to take up, retire, satisfy and pay the said individual note of the said West, given to evidence the indebtedness for said money, and if said company knowingly and in good faith did so deliver its said note to the holder of said individual note of the said West, the failure of the said company to charge the account, on its books, of the said West with the amount of said note would not, of itself, invalidate said company's note or render it accommodation paper.

9. "And if the jury believe, from the evidence, that said Chicago Times note was a valid obligation of the said Chicago Times Company, and collectible, and was held by said Union National Bank or said Kelley as collateral, then it was the duty of the said bank, or of the said Kelley, if the jury believe the said $16,000 note had been sold by the said bank to the said Kelley, to hold the said note of the Chicago Times Company until the maturity of the principal note of $16,000, and then apply the proceeds thereof to the payment of the said $16,000 note and pay the residue to the plaintiff; and in such case, although the jury may believe, from the evidence, that the said Chicago Times note was of greater value than the note originally deposited as collateral, yet such increase in value, if any, inured to the benefit of said Post and his assigns, and said Union National Bank, or said Kelley, were bound to treat the same as if it had

been originally deposited by said Post as collateral to said principal note of $16,000; and if the jury believe, from the evidence, that said Union National Bank, or the said Kelley, (if the said principal note had been sold to him,) did not exercise ordinary and reasonable care and diligence in retaining and attempting to collect said Chicago Times note, and in delivering the same up to the said West and receiving the note of the said West in lieu thereof, (if they did so deliver up the same,) and that loss occurred to the plaintiff by reason thereof, then the defendants, or such one or more of them who participated in such exchange, would be liable to the plaintiff for such loss, and the same may be recovered in this suit. The amount of care and diligence which constitutes ordinary care and diligence, as above set forth, is that care and diligence which an ordinarily prudent man usually exercises in his own affairs."

And the court refused to give the following instructions asked by defendants below:

2. "You are instructed that, under the evidence in this case, Mr. West had, as president of the Chicago Times Company, no legal power to sign the name of the Times company to the note for $25,750, dated March 16, 1889, and that such note was an accommodation note as to the Times company, and as such was neither a legal obligation of nor enforceable against the Chicago Times Company, but that, notwithstanding this, Mr. West would be liable for the payment thereof.

3. "If you find, from the evidence, that the $25,000 in money for which the original West-Munroe note was given, although used in paying debts of the Chicago Times Company, was credited to West on the books of the Chicago Times Company, and so remained as a credit to Mr. West on said books until ultimately paid to him, then you are instructed that the West-Munroe note was a personal obligation of James J. West and not a debt of the Times company; and if you further find, from the

evidence, that when the Times-West note was given in exchange for the West-Munroe note, the amount thereof was not charged to Mr. West in his individual account on the books of the Times company, and was never thereafter so charged or treated as a Times company obligation, you are instructed that Mr. West, as president of the Times company, was without authority to sign the name of the Times company to the Times-West note, and that such note, as to the Chicago Times Company, was merely accommodation paper."

The judgment affirmed was for $13,945.

HENRY S. ROBBINS, for plaintiffs in error.

SIMEON P. SHOPE, and THOMAS CRATTY, for defendant in error.

Mr. JUSTICE CARTER delivered the opinion of the court:

The only questions presented for our consideration arise out of the rulings of the superior court in refusing to give to the jury the second and third instructions offered by the defendants below, and in giving to the jury the sixth and ninth as requested by plaintiff below. These instructions are set out in the statement preceding this opinion. One issue involved the question whether there was a payment of the West-Munroe note for $25,000 by the making, delivery and acceptance of the Times-West note for $25,750; another, whether in surrendering said Times-West note for still another note the plaintiffs in error became liable for its value to defendant in error. And the point made is, that in determining whether what was done amounted to a payment or not, or whether or not the plaintiff, as owner of either the West-Munroe note or the Times-West note, had been damaged by the unauthorized acts of the defendants, the pledgees, it was important that the jury should be correctly instructed as to the lawful authority of West, who was the president of the Times company, to make and deliver said Times