On Petition for a Rehearing.
Worden, J.This case is simply this: The Merchants’ National Bank of Indianapolis had a judgment against Dessar and several persons of the name of Rich, not including the appellant William C. Rich. Dessar was surety or indorser of the note on which the judgment was rendered. After the rendition of judgment, Dessar paid the costs and attorney’s fees thereon, and deposited with the bank the check of the firm of Dessar Bros. & Co., payable to his order, for the amount specified in the certificate of deposit, set out in the original opinion in this cause, and took from the bank the certificate of deposit. Afterward, William C. Rich paid to the bank the amount of the judgment, and took an assignment thereof from the bank to himself. After this, Dessar, the appellee, surrendered his certificate of deposit to the bank, and had the amount thereof credited to the firm of Dessar Bros. & Co.
There was some evidence tending to show that, at the time *317Dessar deposited the cheek with the bank, and took the certificate of deposit, there was an understanding or agreement between Dessar and the bank that, as between them, the judgment should be regarded as paid, but that the bank should collect it of the principals for the benefit of Dessar, who was to be regarded as the equitable owner thereof, and that the certificate of deposit should be regarded as a receipt. We say there was evidence tending to show these facts, not that there was sufficient to establish them' in view of the transaction as it took place.
■ The application to the case of a few well established legal principles will be sufficient to dispose of it. When Dessar took from the bank the certificate of deposit, the bank became liable to him for that amount. No parol evidence of a previous or concurrent agreement or understanding was admissible to contradict or vary the legal effect of the instrument. The authorities on this point are so numerous that a citation of any is unnecessary, but we cite one which lies before us. Lee v. Pile, 37 Ind. 107.
The money represented by the cheek could not be applied to the payment of the judgment, because Dessar took from the bank the certificate of deposit therefor, on which the bank was liable to him or his assigns; and this liability, as we have seen, could not be avoided by parol proof of a contemporaneous understanding or agreement that such liability should not exist.
The bank being thus liable to Dessar for the amount represented by the check, there was no consideration whatever for the alleged agreement on the part of the bank, if any was "Blade, that the judgment should be regarded as paid by Dessar, etc. Then Dessar surrendered his certificate, and had the amount credited to the firm of Dessar Bros. & Co. Thus the bank has really in that way paid the certificate of deposit, while Dessar has paid nothing on the judgment, except the costs and attorney’s fees before mentioned. Dessar is in no condition to claim that the judgment, as to him, has been paid, nor is there anything in the case that legally or equitably pre*318vented the bank from assigning the judgment to William C. Rich.
Original opinion filed November term, 1874; petition for a rehearing overruled May term, 1875.The petition for a rehearing is overruled.
Btjskirk, J.The original opinion .does not, in my judgment, properly express the law. Hence, I think a rehearing should be granted.