I concur in so much of the opinion as concludes in ordering the action to stand for trial. The case, *69as now presented, I regard as exhibiting strong equitable claims, and one which ought to be sustained if it can be upon legal grounds. The proof offered, we must consider actually existing; if true, it exhibits on the part of Waldo T. Pierce gross fraud upon this plaintiff, and such as finds no support in courts of law or equity.
The case finds that the note and mortgage were in the hands of Waldo T. Pierce " till after it was due,” and was then negotiated to the defendant, not in the usual course of trade, but as collateral security.
The defendant, then, can stand in no better position than Waldo T. Pierce would, if he was living and a party to the suit.
Waldo T. Pierce agrees with Bragg, as an inducement to him to enter into the purchase, Kt‘--at he would of set and take in payment of the mortgage notes given, any demands which Bragg could buy against him.” Bragg found an opportunity to purchase a demand and went and named it to Pierce, " who assented to the purchase, and promised, that the notes should be paid by an equal amount to be indorsed on said demand.” In pursuance of this arrangement Bragg made the purchase, and brought the demand and tendered it to Pierce. This, as between Bragg and Pierce, operated as a payment to the amount of the demand purchased, and, in a' suit between them, would have been so treated.
Payment was in no wise dependent upon the indorsement of the payment, upon the note, nor upon the surrender of the note.
Neither the indorsement or the surrender makes the payment. They are the mere evidence of payment.
The indorsement or surrender, if made, are made because a payment has already taken place. When Bragg paid for the demand be did it in pursuance of the assent and direction of Piercethat direction was to buy the demand, and " the note should be paid by an equal amountThe parties then agreed to the application. This proceeding relates to *70a particular demand and stands upon tbe agreement made with reference to that, which is substantially, " purchase the demand and the notes shall be paid by an equal amount.”
If this were not sufficient, it appears to me there has been a clear and distinct recognition of it as a payment subsequent to its purchase.
Bragg having purchased the demand in accordance’ with this agreement, goes with it to Pierce and requests the note to be given up., Pierce does not deny it is a payment, but distinctly recoguizes it as such, by saying he will give up the note, but defers doing it then on account of his illness. He deferred giving up the note, not deferred allowing it as payment. This he distinctly allowed by saying he would give up the note. There was no dispute or difference of opinion between the parties as to the effect of that purchase on the note. . Both seem to have understood it as a payment of so much. Whether its amount was sufficient to extinguish the note, might have required calculation, which, on account of the illness pf Pierce, was deferred.
Here was a distinct application of payment by Bragg, and assent and recognition by Pierce, and neither could change it afterward without the consent of the other, and, if Waldo T. Pierce had brought an action upon his note, upon the facts here reported, there is no principle of law or equity, that would have allowed him to’ avoid this payment, made by his express assent and procurement. It should be borne in mind that it was all done at his suggestion, and by his procurement. This plaintiff would not have parted with his property but upon the condition it should operate as payment. In giving construction to the proceedings, if they are of doubtful import, such construction should be given as best comports with justice to both parties, if it can consistently be done. As before remarked, this defendant can stand in no better position than his assignor, having taken the note when overdue.
The case is one proper to be submitted to a jury under proper instructions, and, should the evidence appear as here *71presented, they would be authorized to find a payment, equal in amount to the demand purchased under the second agreement, and tendered immediately after its purchase in fulfillment of the agreement.