(concurring.) There being no contention as to the proof or amount of plaintiff’s claim, it is only necessary to consider the defenses set up in the answer. As to the defense of “ compromise and satisfaction. ” Defendants sued plaintiff for what he owed them when he quit work. According to the statement prepared by their accountant, the debt on September 16, 1887, amounted to $2,846.18. That amount was paid in full by him or his sureties, without abatement or compromise. After that settlement, Sterling asked defendants “to allow something for his business'” towards payment of the note already given by his bondsman, which defendant refused to do. *86That refusal was not a compromise nor a settlement. That defense is not sustained. As to the other defense pleaded, viz., a fraudulent detaining by plaintiff of upwards of $2,800 of defendant’s money, collected by him as agent. The evidence shows that, to help along the business, Sterling had taken $3,500 of notes in cases where the policy-holders were unable to pay cash. By so doing, he had got in arrears to the company, which refused to accept from him anything but money to the amount of $2,800. But the figures, far from establishing that Sterling had detained defendants’ money, seem to show that he had paid over to them more cash than he had collected; for while but $2,846 in arrear, he had in hand $3,500 of notes thus received. The second defense, therefore, is not established. It is suggested that failure to send on the notes was a breach of duty. A sufficient answer is that no such breach of duty is pleaded. Another is that the company refused to receive anything from him for premiums except cash. There is some dispute in the evidence as to whether Hegeman instructed Sterling to accept notes instead of cash. That question does not seem to be important. There is no defense pleaded that he violated duty in taking notes instead of money. Moreover, were there such a plea, acquiescence in his custom for several months would probably be equivalent in law to express instructions. It may be observed that, while the specific instructions and conversations testified to by Sterling are contradicted, it is not denied that the company had knowledge of his custom, nor is any objection to it shown. Suggestion is now made that the plaintiff’s evidence as to receiving notes is an after-thought. But the history of the trial gives no support to the suggestion. Plaintiff was not cross-examined upon the matter, and his efforts to give full details were successfully resisted. Defendants cannot be heard to complain of a meagerness of proof caused by their own objection. But the proof is not defective. The details of the notes would have made no difference in the legal effect of the evidence. It would have merely given facilities for a cross-examination that was not desired. The apparent explanation is that defendants were already well informed as to the notes, regarded the fact as unfavorable to them, and excluded the evidence so far as in their power. It is argued that plaintiff has misconceived his remedy; that he should have sued for damages for a wrongful discharge. He was not restricted to that remedy. He might well prefer an action in which the amount of his recovery would depend upon figures, and not upon estimates and opinions. The judgment should be affirmed, with costs.