Opinion of the Court.

Hall and Burgess had finished their work under their subcontract, they stated their account to the plaintiff and demanded payment from him; that he notified the defendants and made demand on them; and that they neglected to pay. Such demand, and a neglect on their part to pay, tended to support the case of the plaintiff.

The balance due by the plaintiff to Hall and Burgess was $11,048.08, with interest from January 1, 1879; and that was the amount of the liability of the plaintiff to them under his contract with them. The agreement of the defendants, in the instrument of October 23, 1878, is that they assume the contract between the plaintiff and the company, and that they will well and truly save the plaintiff harmless from any and all liability by reason of his contracts with Hall and Burgess, Ellis and Savage and McCabe, "the ten per cent reserved," and any claim by reason of such contracts.

The agreement to assume the contract, in connection with the further agreement to save the plaintiff harmless from liability, was broken by a failure to pay the parties to whom the plaintiff was liable, and it was not necessary to a breach that the plaintiff should show that he had first paid those parties. Braman v. Dowse, 12 Cush. 227; Locke v. Homer, 131 Mass. 93; Drury v. Tremont Improvement Co., 13 Allen, 168, 171; Stewart v. Clark, 11 Met. 384; Preble v. Baldwin, 6 Cush. 549; Smith v. Pond, 11 Gray, 234; Paper Stock Co. v. Boston Disinfecting Co., 147 Mass. 318.

By the instrument in question, the defendants took the place of the plaintiff, and became, after the instrument was executed, principals in the work of constructing the railroad; and their acceptance of the assignment and the conditions preceding it included the sub-contracts and what was due and to become due upon them. The contract is not merely one to indemnify the plaintiff from damage arising out of his liability, but is an agreement to assume his contracts and to discharge him from his liability. Gilbert v. Wiman, 1 Comstock, 550; Noble v. Arnold, 23 Ohio St. 264, 271; Carr v. Roberts, 5 B. & Ad. 78; Chase v. Hinman, 8 Wend. 452; Rockfeller v. Donnelly, 8 Cowen, 623; Randall v. Roper, 27 Law

Syllabus.

J. N. S. Q. B. 266; Warwick v. Richardson, 10 M. & W. 284; Port v. Jackson, 17 Johns. 239; Wicker v. Hoppock, 6 Wall. 94; Lathrop v. Atwood, 21 Conn. 117, 125.

The case is not open to the objection that the plaintiff endeavored to extend and enlarge by parol the provisions of a written instrument under the guise of proving its consideration; and the cases on that subject do not apply.

Although the instrument in question states that the defendants have agreed to receive from the plaintiff an assignment of the plaintiff's contract with the railroad company "in trust for said company;" that the defendants "assume said contract in their capacities aforesaid;" that they have paid the $15,000 "in their capacity aforesaid," and the assignment is made to them "as aforesaid ;" and that the plaintiff appoints them, "trustees as aforesaid," his attorneys; and although they "as aforesaid accept the assignment," their agreement to save the plaintiff harmless from any and all liability by reason of the contracts named is an absolute personal agreement on their part.

The judgment is reversed, and the case is remanded to the Circuit Court with a direction to award a new trial.

ARMSTRONG v. AMERICAN EXCHANGE NATIONAL BANK OF CHICAGO.

SAME v. SAME.

APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF OHIO.

Nos. 1110, 1111. Submitted January 13, 1890.- Decided March 3, 1890.

On June 14, 1887, the Fidelity National Bank of Cincinnati drew a draft for $100,000 on the Chemical National Bank of New York City, payable to the order of the American Exchange National Bank of Chicago, and put it into the hands of one W., who delivered it for value to K. & Co. They endorsed it for deposit to their account in the Chicago Bank, which credited its amount to them and paid their checks against it. It was not paid: Held, that the draft was a foreign bill of exchange; that W. did not act as the agent of the Cincinnati Bank; and that in a suit by the ChiVOL. CXXXIII-28

Syllabus.

cago Bank against the receiver of the Cincinnati Bank, which had failed, to recover the amount of the draft, the Chicago Bank was a bona fide holder and owner of it for value, and want of consideration could not be shown by the receiver.

The fact that the draft was payable to the order of the plaintiff was not notice to it that W. was not its purchaser or remitter; and the Cincinnati Bank had represented to the plaintiff that W. was a bona fide holder of the draft, for his use in making good trades of his with K. & Co. An instrument signed by the Cincinnati Bank, dated June 14, 1887, addressed to the Chicago Bank, stating that W. & Co. had deposited $200,000 to the credit of the latter bank, for the use of K. & Co., was put by the former bank into the hands of W. & Co., who delivered it to K. & Co., who deposited it with the Chicago Bank, which gave credit for its amount to K. & Co. as cash, and paid with a part of it an overdraft of K. & Co. and honored their checks against the rest of it. In a suit by the Chicago Bank against the said receiver to recover the $200,000: Held, that the instrument was in its legal character a certificate of deposit; that the plaintiff was an innocent purchaser of it, for value; that, as the Cincinnati Bank had represented to the plaintiff that it had received from W. & Co. consideration for the paper, it was estopped from setting up the falsity of such representation; that the plaintiff did not take the paper under such circumstances as would put a man of ordinary prudence on inquiry; and that there was nothing to lead the plaintiff to suspect that the money represented by the paper was that of the Cincinnati Bank. A defence set up to the suit on the certificate of deposit was, that H. (the vice-president of the Cincinnati Bank), its assistant cashier, and W., of W. & Co., conspired to defraud that bank by using its funds in speculating in wheat in Chicago, through K. & Co., so as to make a "corner in wheat: Held, that rumors on the board of trade and in the public press that H. was the real principal for whom W. was acting, could not affect the plaintiff; and that the plaintiff could not refuse to honor the checks of K. & Co. against the deposit, on the ground that K. & Co. intended to use the money to pay antecedent losses in the gambling wheat transactions.

The statute of Illinois, 1 Starr & Curtis, Stat. 1885, pp. 791, 792, §§ 130, 131, and the case of Pearce v. Foote, 113 Illinois, 228, do not apply to the present case.

Where losses have been made in an illegal transaction, a person who lends money to the loser, with which to pay the debt, can recover the loan, notwithstanding his knowledge of the fact that the money was to be so used. An obligation will be enforced, though indirectly connected with an illegal. transaction, if it is supported by an independent consideration, so that the plaintiff does not require the aid of the illegal transaction to make out his case.

It does not appear that the plaintiff had knowledge or notice that the paper in suit was delivered to it to be used through it by K. & Co. in connection with an attempt to corner the market.

Citations for Appellee.

Where a dividend was declared by the receiver in October, 1887, the plaintiff is entitled to interest on the amount of his dividend from the time it was declared.

IN EQUITY.

Decree in favor of the complainant. The defendant appealed. The case is stated in the opinion.

Mr. John W. Herron, for appellant, cited: White v. Knox, 111 U. S. 784; Vorce v. Rosenbery, 12 Nebraska, 448; Chariton Plough Co. v. Davidson, 16 Nebraska, 374; Aldrich v. Stockwell, 9 Allen, 45; Kyle v. Thompson, 11 Ohio St. 616; Tisen v. Hanford, 31 Ohio St. 193; Weber v. Orton, 91 Missouri, 677; Trust Co. v. National Bank, 101 U. S. 68; Pollard v. Vinton, 105 U. S. 7; Farmers' and Mechanics' Bank v. Butchers' Bank, 16 N. Y. 125; S. C. 69 Am. Dec. 678; Baxendale v. Bennett, 3 Q. B. D. 525; Stewart v. Lansing, 104 U. S. 505; Marion County v. Clark, 94 U. S. 278; Pearce v. Foote, 113 Illinois, 228; Coffman v. Young, 20 Ill. App. 76; Raymond v. Leavitt, 46 Michigan, 447; Brown v. Tarkington, 3 Wall. 377; Chapin v. Dake, 57 Illinois, 295; Third Nat. Bank v. Harrison, 3 McCrary, 316; Cunningham v. Third Nat. Bank of Augusta, 71 Georgia, 400; Dresser v. Missouri & Iowa Construction Co., 93 U. S. 92; Williams v. Smith, 2 Hill, 301; White v. Knox, 111 U. S. 784; Bank of Bethel v. Pahquioque Bank, 14 Wall. 383; Chemical Bank v. Bailey, 12 Blatchford, 480.

Mr. C. B. Matthews and Mr. W. H. Swift, for appellee, cited: Munroe v. Bordier, 8 C. B. 861; Watson v. Russell, 3 B. & S. 34; South Boston Iron Co. v. Brown, 63 Maine, 139; Glascock v. Rand, 14 Missouri, 550; Horn v. Fuller, 6 New Hampshire, 511; St. Louis & San Francisco Railway Co. v. Johnston, 23 Blatchford, 489; S. C. 27 Fed. Rep. 243; Bank of Circleville v. Bank of Monroe, 33 Fed. Rep. 408; In re Bank of Madison, 5 Bissell, 515; Clark v. Merchants' Bank, 2 Comstock, 380; In re Franklin Bank, 1 Paige, 249; S. C. 19 Am. Dec. 413; Platt v. Beebe, 57 N. Y. 339; Metropolitan Bank v. Loyd, 90 N. Y. 530; Bank of the Republic v. Millard, 10 Wall. 152; Brooks v. Bigelow, 142 Mass. 6; Commercial Bank v. Mil

Opinion of the Court.

ler, 77 Alabama, 168; Flannery v. Coates, 80 Missouri, 444; In re Carew's Estate, 31 Beavan, 39; Ex parte Richdale, 19 Ch. D. 409; Hudson Canal Co. v. Pennsylvania Coal Co., 8 Wall. 276; Long v. Straus, 107 Indiana, 94; Miller v. Austen, 13 How. 218; Curtis v. Leavitt, 15 N. Y. 9; Leavitt v. Palmer, 3 Comst. 19; S. C. 51 Am. Dec. 333; Barnes v. Ontario Bank, 19 N. Y. 152; Bank of Peru v. Farnsworth, 18 Illinois, 563; Laughlin v. Marshall, 19 Illinois, 390; Hunt v. Divine, 37 Illinois, 137; White v. Franklin Bank, 22 Pick. 181; Hart v. Life Association, 54 Alabama, 495; Kilgore v. Bulkley, 14 Connecticut, 362; Lindsey v. McClelland, 18 Wisconsin, 481; S. C. 86 Am. Dec. 786; Bank of Chillicothe v. Dodge, 8 Barb. 233; Poorman v. Mills, 35 California, 118; S. C. 95 Am. Dec. 90; Hazelton v. Union Bank, 32 Wisconsin, 34; Trip v. Cortenius, 36 Michigan, 494; Bean v. Briggs, 1 Iowa, 488; S. C. 63 Am. Dec. 464; Howe v. Hartness, 11 Ohio St. 449; S. C. 78 Am. Dec. 312; Cummings v. Gassett, 19 Vermont, 308; Hussey v. Winslow, 59 Maine, 170; Fleming v. Burge, 6 Alabama, 373; Blood v. Northrup, 1 Kansas, 28; Nelson v. First Nat. Bk. of Chicago, 48 Illinois, 36; S. C. 95 Am. Dec. 510; Grissler v. Powers, 81 N. Y. 57; Armstrong v. Tyler, 11 Wheat. 258; Mc Blair v. Gibbes, 17 How. 232; Kinsman v. Parkhurst, 18 How. 289; Brooks v. Martin, 2 Wall. 70; Railroad Co. v. Durant, 95 U. S. 576.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

These are appeals by David Armstrong, receiver of the Fidelity National Bank of Cincinnati, Ohio, from decrees rendered against him by the Circuit Court of the United States for the Southern District of Ohio, in two suits in equity, brought against him in that court by the American Exchange National Bank of Chicago, Illinois. The first case will be referred to as No. 1110, and the second case as No 1111.

No. 1110 was commenced on the 5th of November, 1887, by a petition, which was demurred to by the defendant. The demurrer was overruled, the defendant answered the petition, and there was a replication to the answer. Then, by leave of