CONCURRING OPINION.
Rombauer, P. J.I concur in reversing the judgment and remanding the cause, because some of the errors assigned are well assigned, and because one of the defenses interposed by the defendants was wholly ignored, by the court, although it was supported by substantial evidence and the defendants asked its submission to the jury by an appropriate instruction. I prefer, however, to state the reasons for my concurrence separately.
I take it to be the established practice in this state that, although the action is one at law, yet, if the defendant interposes an equitable defense, praying for relief which a court of equity alone can grant, the action, is triable at equity and not at law. On the other hand, parties may try an action triable in equity *380before a jury, and, if no objection is made at the trial to such proceeding, they will be concluded by the verdict of the jury if the case is tried free from error in other respects. I make this suggestion in view of a retrial of the cause, as its retrial in equity is likely to lead to a more satisfactory result.
It will be seen from the statement of the case in the main opinion, that the action is brought on two out of three promissory notes, for $1,000 each, which were executed by the defendants, husband and wife, in accord and satisfaction of the husband’s debt to one John Gerardi. These notes were indorsed by plaintiff, and he repurchased them from John Gerardi upon failure of the defendants to pay them at maturity. The recovery was for the proportional amount expended in the repurchase'. Two defenses were interposed: One, that the defendants were accommodation makers for the plaintiff, and the other that the plaintiff was their trustee, and repurchased these notes from John Gerardi with trust funds in his hands. The first defense was not supported by any substantial evidence, and rested on a misconception of the definition of an accommodation maker. The notes were executed for the benefit of one of the defendants, and not for the benefit of the plaintiff. There would have been no error in the court’s instruction on that subject, had it been the only defense. In fact, the evidence in such event would have warranted a peremptory instruction to find for plaintiff. There was, however, ample evidence to support the second defense. While the agreement of November 23, 1892, which is set out in the opinion is somewhat ambiguous, the ambiguity is removed by the interpretation given to it by the parties themselves, which interpretation is bound to prevail in such a case. St. Louis Gaslight Company v. City of St. Louis, 46 Mo. 121; Jones v. DeLassus, 84 Mo. *381541; Sedalia Brewing Company v. Waterworks Company, 34 Mo. App. 49. Both parties treated the transfer of the claims and securities held by the plaintiff as trustee, when made by John Gerardi to him, as made, not for his benefit, but for the benefit of his grantor, Joseph Gerardi. The only controversy upon the trial was whether plaintiff had accounted to his grantor for these securities, or used the proceeds, or part of them, in the repurchase of the notes. The plaintiff’s evidence was to the effect that he had so accounted, and the defendants’ evidence was to the contrary effect. The defendant’s second instruction presented that issue for the consideration of the jury, and should have been given. The only issue under the evidence was this question, and yet the instructions to the jury wholly ignored it.
Biggs, J.As the case was tried by both parties on the theory stated in the foregoing concurring opinion, the result reached by it seems to be unavoidable.