MERITS.
Hamilton J.Roub'on bought from plaintiff on December 5, 1922', one Studebaker automobile, in payment of which he turned over to plaintiff one Ford sedan automobile, on which there was due to one L. Wehrli, Jr., twq hundred ninety and 36/100 dollars secured by chattel mortgage on the Ford sedan, and for the balance of the purchase price, defendant gave plaintiff a series of notes aggregating altogether four hundred dollars. There is. no evidence as to the agreed value of the Studebaker and of the Ford automobile at the time this sale and exchange took place. Neither one of the parties remembers the details of this admitted transaction. ' There is no evidence as to whether plaintiff assumed to pay the chattel mortgage, resting on the Ford sedan, or whether that mortgage was to be ©aid by Roubion. But it does appear that on the day the exchange and salq was made, December 5, 1922, Roubion signed a note which he endorsed in blank and which was also endorsed by plaintiff, *691for two hundred ninety and 36/100 dollars, which note was discounted hy the Covington Bank and Trust Company and the proceeds thereof were used to pay the chattel mortgage on the Ford sedan in favor of Wehrli. This note was renewed twice and finally taken up and paid hy plaintiff.
Thq present suit is upon a renewal note for the same amount dated April 5, 1923, and defendant disclaims owing the same for the reason that shortly after the sale and exchange of December 5, 1922, he returned to plaintiff the Studebaker automobile; that the return of the Studebaker had the effect of nullifying and avoiding the sale and exchange contract of December 5, 1922; that plaintiff nevertheless keipt the Ford sedan and sold it to his brother; that having kept and retained the Ford sedan, it is only right and equitable that plaintiff should pay the chattel mortgage of $290.36 with which the sedan was effected when he received the same from Roubion.
Such in substance are the facts as we best can gather them from testimony which is remarkably vague as to the details of the transaction which took place on December 5, 1922. It may be argued that Roubion agreed to pay the chattel mortgage of $290.36, resting on the Ford, when he turned the Ford over to plaintiff, from the fact that he signed the note, the proceeds of which were used to extinguish that mortgage. But on the other hand, although the transaction of December 5, 1922', was set aside and avoided, when plaintiff accepted the return of the Studebaker automobile, plaintiff kept the Ford, and in the absence of any special agreement to the contrary, it does seem that he should pay the mortgage. Plaintiff is equitably es-topped from refusing to pay for the Ford which he retained and sold, and for which the consideration that he had given, was returned to him and accepted by him. We think the plaintiff’s claim should be rejected.
For these reasons the judgment appealed from is avoided and reversed and plaintiff’s demand is refused at his costs.