The opinion of the court was delivered by
Pierpoint, Ch. J.The first question presented by the exceptions is as to the correctness of the decision of the court below in holding that the interest upon the notes in suit had been paid up to the 1st of January, 1873. It appears that an agreement was entered into between the plaintiff and Cain, the principal in the notes, that the plaintiff would take the note of Cain for the amount of the interest up to that date, reckoned at seven per cent., secured by mortgage, in payment of such interest. This note was made and delivered to the plaintiff, and he indorsed the interest upon the notes, and then the parties went to an attorney’s office to have the mortgage made and executed to secure the note he had so received, but the execution of the mortgage was delayed, and finally was never executed. There was nothing to show that any other agreement as to the payment of the interest was ever entered into between the said parties. The case shows that the indorsements were made by the plaintiff, relying upon Cain’s agreement to furnish the security. This we think did not operate as a payment of the interest. The plaintiff did not agree to take the note without the security as payment. The indorsement was prematurely made. Such an indorsement was no more a payment than it would have been if Cain had agreed to pay the money, and had taken it out and stood with it in his hand, and the plaintiff, relying upon his promise, had taken his pen and indorsed the interest, as in this case, and then Cain had put the money in his pocket and walked off. A subsequent agreement of Cain that such indorsement should not be a payment, would be of no effect whatever. This being so, we have no occasion to pass upon the other questions in the case.
*358Judgment of the County Court reversed, and judgment for the plaintiff for the amount due upon the notes, disregarding the in-dorsement of the interest to January 1, 1873.