(dissenting.) I am unable to agree with my associates in the determination of this appeal. A consideration of the testimony forces upon me the conclusion that but little reliance should be placed upon the evidence of the plaintiff. He first testified during the life-time of the defendant’s testator. After his death, when there was no one living who had anything to do with the transaction between the parties, he was recalled as a witness several times. At each time he remembered new conversations with the defendant’s testator and his son, who was also dead; such conversations never having been in the presence of any living person, and evidently furnished for the purpose of meeting some emergency of his case as it developed. It would appear as if section 829 of the Code had been systematically disregarded in the admission of the evidence. The fact that Garrison, "before his death, had answered certain interrogatories without being sworn in another action, and that such answers were read by defendant upon the trial *892of this action, would not make the plaintiff’s testimony of anything that subsequently happened competent. It is only “where the testimony of the deceased person is given in evidence concerning the same transaction or communications” that the evidence of the other party as to the transaction or communication can be received, and as to many of the communications to ■which plaintiff was allowed to testify the deceased had given no testimony. This, however, is an appeal by the plaintiff, and, as the defendants’ objections to the admission of testimony are not stated in the case, it is impossible to say that any objection was taken to the admission of the evidence. The nature of the testimony is adverted to, as upon such evidence it would be manifestly improper to reverse the finding of fact of the referee. By the twenty-second finding of fact the referee finds that the notes therein referred to were issued under an agreement between all the parties “as a temporary expedient for the purpose of stating the accounts; and that thereafter, and as soon as practicable, second-mortgage bonds should be issued to secure or provide for such indebtedness, and to take the place of said notes so temporarily issued;” and by the fortieth finding of fact the consummation of that agreement by the sale and delivery of the bonds to Garrison. I am satisfied that these findings were sustained by the evidence, but upon the indisputed testimony I think the referee was clearly right in the conclusion to which he arrived.
A very brief review of the facts that are substantially undisputed will be useful in determining, the question. It is found by the referee, and for the purposes of this appeal must be taken as established, that the plaintiff had assigned to Garrison his contract with the railroad company as security for advances made by Garrison and used by plaintiff to carry out the contract. Garrison had also advanced to plaintiff certain moneys which had been expended for the benefit of the company, and the company was indebted to plaintiff for that money so expended. The company thus made its promissory notes to plaintiff, who indorsed them and delivered them to Garrison. It is not claimed by either party that these notes were delivered to Garrison in payment of plaintiff’s indebtedness to him, but plaintiff claims that Garrison had held them as security for advances made by him to plaintiff. Garrison, holding these notes¡ and having other claims against the company, presented an account to the company which included the notes in question, and demanded a settlement, and the directors of the company passed a resolution whereby the president was authorized to sell and deliver to Garrison second-mortgage bonds to the amount of $2,280,000 at the rate of 75 cents on the dollar in payment of part of this claim so presented against the company. This was passed with the knowledge of plaintiff. This being the situation, Garrison, with the plaintiff’s knowledge and consent, delivered the notes to the company, and received therefor bonds of the company at„the rate of 75 cents on the dollar, secured by a second mortgage on the company’s property. It is clear that as between Garrison and the company this was nothing more than a change of the form of the company’s indebtedness. Garrison had obligations of- the company which were presently due and enforceable. The company were willing to fund such obligations and give in exchange therefor bonds secured by a mortgage upon the property, payable at a future time. There was no present consideration that passed from Garrison to the company, and although the resolution speaks of the transaction as a sale of the bonds, it was really an issue of bonds in part payment of its debt to Garrison. It owed Garrison before the issue'of the bonds; it owed him after the issue of the bonds. The form of the obligation was changed; but whatever change there was in the form of the obligation of the company as between plaintiff and Garrison there was no change in their relation. Garrison had held certain notes of the company which belonged to plaintiff. He had, with the assent of plaintiff, delivered those notes to the maker, and received in lieu *893thereof their obligations, secured by.a mortgage on its property. The only change in the securities was to give to the substituted obligation a lien by way of mortgage upon the debtor’s property, and to increase the face value of the obligations 25 per cent. Those bonds were held by Garrison in place of the notes, and were still in the possession of his executors at the time of the trial. The evidence clearly established that before this transaction was completed the notes of the company were worthless, and the bonds issued in lieu thereof worthless. Plaintiff had not in reality advanced one dollar of this amount represented by those notes. Every dollar had been paid by Garrison. Garrison had certainly never received a dollar of the money so advanced, and had never agreed witli plaintiff to purchase the second-mortgage bonds. If the bonds had subsequently become valuable securities, could Garrison have refused to account to the plaintiff for their proceeds? Clearly no, for the plaintiff had never parted with whatever interest he had in them, and to say that plaintiff is entitled to a credit for the face value of the worthless notes because his bailee had, with his consent, changed them into higher and better securities of the maker, under circumstances which would have made the bailee respons.ble to the bailor for the substituted securities, would be imposing on the defendant a liability far in excess of that prescribed by any rule of law with which I am acquainted. The full discussion by the referee in his opinion renders a further examination unnecessary. As considerable stress has been laid upon credits in Garrison’s books, it may be said that they were not shown to have been made by direction of Garrison. The plaintiff had no knowledge of such entries, and the parties never acted on them. So far as appears plaintiff did not claim, during Garrison’s life-time, that the second-mortgage bonds had been purchased by Garrison individually, and there is no evidence that the parties ever acted upon the assumption that any such sale had taken place. At this time, and for a long time prior thereto, plaintiff had been unable to furnish money for the completion of his contract. In fact it does not appear that he ever did furnish any money, but Garrison furnished all that was expended. Plaintiff had been for years in receipt of an annual allowance from Garrison for his services, and it is clear from the correspondence and the acts of the parties that plaintiff considered that he had no real interest in the contract. It could not, under such circumstances, be said that the entry in the books of the parties should be given the same effect as zf the agreement between the parties were still understood to be existing and in force. Assuming, however, that the plaintiff should have been allowed the face value of the notes transferred to the company, it does not follow that the judgment must be reversed. It appears that the total amounts of the notes of the company delivered by plaintiff to Garrison was $1,949,710.72. Of this amount $326,048.12 was not delivered to the company in payment of the bonds of the company. Such notes, amounting to $326,043.12, were charged against Garrison by the referee, having been subsequently delivered by him to the company, leaving $1,623,667.60 as the notes given by Garrison in payment of the second-mortgage bonds. This amount, under the rule as stated in the opinion of the chief judge, should have been charged against Garrison. This amount, with interest, can now be deducted from the amount of the judgment awarded against the plaintiff, and, as thus modified, the judgment affirmed, without costs of this appeal; this modification to be made upon defendants’ consent thereto.