I concur in all Justice Houghton says except with reference to the answer. I am satisfied the answer does not present the issue litigated. The complaint alleges the turning over to the defendant bank of certain securities and property to secure the so-called $15,000 note; that there was no authority to pledge it for other purposes, but that the bank claims to hold it for other indebtedness of Patton; that the bank had realized more than enough to pay the indebtedness intended to be secured, and had refused to return or account for the securities, and it prayed an accounting and that the plaintiff’s interest in the property pledged 'be fixed.
The answer contains several denials, alleges that the collateral was intended to secure the so-called $11,000 note and that there is $577.24 unpaid upon it, and that the defendant has the right to retain the collateral until such loan is paid. It then alleges that the defendant served upon the plaintiff a certain notice, a copy of which is attached to the answer, but which apparently is of no force as a pleading. The statements in the notice are not even alleged to be true. Apparently from the face of the pleadings the plaintiff would be entitled to the return of the securities mentioned in the complaint upon payment of the $577.24.
In an action for an accounting, if the defendant held the security for other indebtedness, it was its ■ duty to allege the facts. I think the alleged notice does not help out the -answer and that there is an absence of any allegations which justify the proof of other indebtedness for which the defendant claims to hold the collateral.
Judgment reversed on law and facts, and new trial granted, with costs to appellant to abide event.