Opinion by
Mr. Justice Fell,The assignments of error are to the refusal of the court to open a judgment and set aside an execution. We have not been furnished with a copy of the petition on which the rule to show cause was granted, and we are left without the aid of an index to search through more than two hundred pages of testimony to find the parts which throw light on the questions raised.
The defendant testified that the note was- given as collateral security for his indebtedness, and that judgment was not to be entered thereon unless he was in default in making payments. He does not say that the plaintiff agreed not to enter judgment, and the most that can be made of his testimony is that it was his understanding that judgment was not to be entered. His testimony, if undisputed, would furnish no ground for opening the judgment, as the amount of the debt is not disputed, and it was the plaintiff’s right, unless he agreed otherwise, to secure a lien by the entry of judgment. He is, however, flatly contradicted at every point.
The only doubt as to the correctness of the action of the court in refusing to set aside the execution arises from a declaration in writing signed by the defendant and delivered to the plaintiff at or about the time of the execution and delivery of the note, in which it is stated that the note is given as collateral for the payment of a mortgage for $10,000 “ and also for the sum of $5,000 which amount the said Thomas Gillespie, Sr., has already put into the firm of Webster, Gillespie & Co. as capital to my interest, all of which I am to return with interest to the said Thomas Gillespie, Sr.” In view of the actual transaction it is difficult to determine what was intended by this declaration. The plaintiff had at one time loaned the defendant $5,000 and at another time $10,000, which he raised by mortgaging his real estate. The note in question was the only evidence of his indebtedness, and it was not a collateral for anything. This writing was not prepared at the instance of the plaintiff, or signed by him, and the only weight it can have as evidence of an agreement or understanding arises from the fact that it was received and retained by the plaintiff without objection. If this were a clearly expressed statement, consistent with the admitted facts, and delivered at the time the loan *409was made, its acceptance and retention by the plaintiff without objection would be ground for tbe implication of his assent to the terms expressed, and it should be given weight second only to that to which a written agreement would be entitled. But that is not the testimony. It is denied that it was delivered with the note, that it expressed any terms ever considered or suggested, or that there was at any time any conversation between the parties in relation to it.
A careful examination of all the testimony discloses no error in the order of the court discharging the rule, and the judgment is affirmed.