A controversy existed between the parties, involving the question of plaintiff's liability on the $6,250.11 note which plaintiff claimed was an accommodation note. Its claim was in good faith and with some color of right. In such situation the bank made a proposition of settlement or compromise as evidenced by the letter of January 16, 1925, set forth in the opinion. It is plaintiff's exhibit K. Plaintiff's exhibit L is an unqualified acceptance of the proposition; and a contract was thereby made. By this contract plaintiff waived its alleged defense and has not since denied liability. It merely asserts its contractual rights evidenced by these two exhibits to the effect that certain collateral is to be released and surrendered and the indebtedness carried for five years without interest. Granting that the authorities cited sustain the doctrine of estoppel as to an accommodation note as against the receiver of the bank, I do not understand how this doctrine can be invoked here after the settlement. I speak only of the conditions and circumstances subsequent to January 16, 1925.
The opinion apparently rests upon the proposition that the $6,200 note and its renewals remained in the assets of the bank containing a recital that it was secured by "sundry collateral now on file," and that the note was to draw interest. The provision for interest was inconsistent with the new agreement but it could not be construed as a modification or repudiation thereof. Such was not the intention of the parties. If the banking department was deceived thereby it was wholly because of the bank, since plaintiff did not know *Page 538 that the letters were not kept with the note. The deception, if any, related only to the interest. That was too trivial to be important. The contract required the collateral to secure this note until the other indebtedness was paid. The notation that the note was secured by collateral was true. The contract alone disclosed the fact that at a certain time in the future the collateral was to be surrendered. The trial court found that the note was included as an asset of the bank "in the called reports of the state bank examiner." Of course it was. It was an asset. The inclusion was the truth. Plaintiff does not deny liability on the note. There was here no secret or hidden agreement. These letters constituting the contract were presumably in the bank's correspondence which the examiner never examined. The mere fact, if it be a fact, that the bank examiner did not see the letters cannot deprive the plaintiff of the benefit of its contract. It did not by its conduct mislead the examiner. If the bank officials did not see fit to attach the contract to the note so that the examiner could find it the fault is not plaintiff's.
In this case the examiner testified that he did not go through the bank's correspondence, that he did not see these two letters, and that they were not in the note pouch or collateral file.
Plaintiff carried out its agreement evidenced by the letters. The bank did also, until it passed into the hands of the commissioner. No interest was demanded or paid on this note. Plaintiff paid its interest on other indebtedness. There was not a single thing done by the bank or plaintiff inconsistent with plaintiff's contentions. I do not see how the doctrine of estoppel is now applicable. *Page 539