Opinion,
Mr. Justice Clark:We are of opinion that this decree must be reversed. The appellee, John F. Griel, is not only the assignee for creditors of Joseph Stark, but is also the executor of the last will and testament of Jacob Griel, Sr., deceased. The appellant’s contention is that the judgments in question were not given for any absolute debt of Stark to Griel, but were conditional obligations, given to secure Griel from the effect of his indorsements for Stark’s benefit, and that in fact there were no such indorsements existing at the time the sheriff’s sales were made; that the indorsements exhibited in evidence were upon the accommodation notes of Stark given to Griel and discounted for Griel’s benefit; that the sheriff’s sales were made by a mutual arrangement or understanding of the parties with a view, as Griel said, to give Stark a new start in business ; and that the proceeds of the sales coming into Griel’s hands were for Stark’s use under this arrangement. This, as we understand the case, is the substance of the offers made before the auditor, and which he refused. There was no offer to impeach the validity of the judgments; their validity was conceded, but the offer was to show that the judgments were given for one purpose, and that they had been used for a different purpose.
Now, if these offers were justified in the proof, and in all these transactions Jacob Griel, Sr., was represented by John F. Griel, it would seem to us that John F. Griel, as the assignee of Stark, should have charged himself with the proceeds of these sales received by Jacob Griel, Sr. Assuming the facts stated to be true, in what other way could the question of the liability of the estate of Jacob Griel, Sr., deceased, be determined? The solvency of Griel’s estate, and its liability to Stark for the money thus received, being assumed, why should not the assignee charge himself as assignee, and take credit as executor, for the amount conceded to be in his hands ? All *553this is said upon the assumption that the proof is according to the full measure of the offers. Of course, when the evidence is taken, a wholly different case may appear.
Nor can we understand how, in the absence of any agreement to that effect, Stark can be charged with the payment of the fees of Griel’s attorneys. If the understanding between Griel and Stark was as the appellant offered to prove, and Griel had carried it out in good faith, there might have been some ground for reimbursement for necessary fees and expenses attending the trust; but the appellee denies the trust and the fees were incurred in the very act of resisting it.
The decree is reversed, and the record remitted for further proceedings; the appellee to pay the costs of this appeal.