
    CLARK R. GRIGGS, Plaintiff v. MELVILLE C. DAY, et al., as Executors, etc., Defendants.
    
      Cross appeals from a judgment entered upon the report of a referee.
    
    Where a, court has on a former appeal in the same case examined and decided questions in a case, it will not on a second appeal re-examine the questions or change or modify its former decision upon the same state of facts.
    In this case, at the last trial, the parties stipulated that the evidence introduced upon the former trial, as printed in the case upon the former appeal, should be the evidence of the parties on the second and new trial.
    
      Held, that all objections and exceptions to the admission or exclusion of evidence, as the same appeared in said case, were waived, and, therefore, no exceptions to the admission or exclusion of evidence were taken by either party on the new trial.
    
      Held also, that the evidence as thus submitted supports the findings of fact made by the referee, and the findings of fact fully sustain the conclusions of law made thereon. The referee has given proper effect to the rulings made on the former appeal so far as they are applicable, and no exception appears on either side that calls for a reversal or modification of the judgment, and these appeals should be affirmed on the opinion and supplemental opinion made and filed by the referee.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.
    
      Decided May 2, 1892.
    
      Cross appeals from a judgment entered upon the report of a referee, whose opinion and supplemental opinion in the case was as follows :—
    William B. Hornblower, Referee.
    “This suit is brought for an accounting for transactions growing out of the construction of the Wheeling and Lake Erie Railroad. It was originally referred for trial to the Hon. Rastus S. Ranson, as referee. He having been elected surrogate of this county before the conclusion of the trial, Hamilton Odell, Esq., was substituted in his place as referee. After careful consideration, the able and learned referee awarded judgment against the plaintiff for the sum of $2,171,395.84. Upon appeal by plaintiff to the general term this judgment was reversed and a new trial ordered, and the issues were thereafter referred to me for hearing and decision. Upon the trial before me, the testimony taken upon the former trial was stipulated in evidence as the testimony on this trial, all exceptions to the admission or rejection of evidence being waived.
    “ The general term assigned but a single ground for reversal, namely, that plaintiff should have been allowed a credit of a certain amount (fixed by the opinion of Freedman, J., on the settlement of the order at $1,736,-600, with interest from May 1, 1883), and the learned Chief-Justice who delivered the first opinion of the court says: ‘ I do not think that any other exception of the plaintiff calls for a direction to correct the account in any other particular. The defendants’ exceptions, of course, have not been heard on the plaintiff’s appeal.’ The opinion directed that there should be a new trial, unless defendants should consent to a deduction, in which case the judgment should be affirmed. Subsequently, however, this direction was modified, after hearing counsel, and the court ordered ‘ an unconditional reversal of the judgment upon the facts as well as the law/ and a new trial ‘ in accordance with the principles laid down in the opinion.’
    
      “ Under these circumstances, the first question presented for my consideration is, how far I must disregard the conclusions of the former referee, so far as they are not expressly overruled by the general term, the testimony before me being precisely the same as that which was before the former referee and the general term. It would be very grateful to me, and would save me much labor and responsibility, if I could hold that I am merely called upon to restate the account between the parties upon the principles laid down by the former referee as modified by the opinion of the general term ; but upon reflection I am satisfied that I am bound under my oath as referee to consider the whole case de novo and to pass on all the contested questions of fact and all the doubtful inferences deducible from the uncontradicted testimony, precisely as a court and a jury would be called upon to do if this case were triable at circuit. Of course, I cannot be, and ought not to be, unmindful of or uninfluenced by the decision of the former referee, for whose character and ability I entertain the very highest respect, on any question of fact or law on which my own mind is in doubt.
    
      “ This suit was originally brought against Cornelius K. Garrison. He died pending the former trial and his executors were substituted in his place. The wife of Garrison was also originally made a party to set aside her inchoate right to dower in certain real property; but no relief is now asked against her, plaintiff’s counsel abandoning any claim to a reconveyance of such real property.
    “ As the facts of the case will be fully set forth in my report, I shall not recapitulate them in this opinion, but shall confine myself to a brief statement of the conclusions, which I have arrived at on the main points in dispute between the parties. It is sufficient to say in this ° connection that plaintiff had entered into certain agreements with the Wheeling and Lake Erie Railroad Company, an Ohio corporation, for the construction of its railroad between certain points designated, for which he was to receive compensation in stock and bonds of the company, based upon a mileage proportion—the company engaging on its part to furnish certain amounts for right of way, grading, bridging and tieing’ with a contractor’s profit of ten per cent. In the fall of 1880 Garrison began a series of advances to plaintiff in aid of his work of construction, and out of these advances grew numerous dealings between plaintiff and Garrison, which gave rise to the controversies which form the subject matter of this action.
    “ On the 17th of December, 1880, the following paper was executed by Griggs and delivered to Garrison :
    
      “ ‘ New York, Dee. 17th, 1880.
    
      “ ‘ In consideration of a loan of forty thousand dollars this day made to me by C. K. Garrison, I, C. Robinson Griggs, do hereby transfer to said Garrison all the first mortgage bonds of the Wheeling and Lake Erie Railroad now in the Farmers’ Loan and Trust Company, amounting to three million three hundred and seven thousand dollars ($3,307,000), making, with one hundred and ninety-three thousand dollars held by W. W. Phelps and others, the entire issue of three million and five hundred thousand dollars. I further assign to said Garrison my construction contract with said company, and all stock to which I now am or may hereafter be entitled under said contract. I further authorize the sale of all or any part of said bonds at eighty-five per cent, net, and for every fifteen thousand dollars of bonds sold by said Garrison or myself or any other person I agree to transfer to said Garrison, and authorize him to retain from any stock to be received under said construction contract, seven thousand dollars of full-paid stock of said Railroad Company. All sums received from sale of bonds over the amount of loan and interest to be paid to me or my order.
    “ ‘ C..Robinson Griggs.’
    “The plaintiff’s first claim upon this accounting is that the defendants should be charged with the proceeds of the sale of 3,407 first mortgage bonds of the railroad company at 85 cents on the dollar, or $850 each, with interest thereon. This claim is based upon the theory that Garrison elected to purchase, and did in fact purchase, this number of bonds under the terms of the agreement between plaintiff and Garrison of December 17, 1880. Defendants dispute this claim. They admit that Garrison had an option to purchase any or all of the bonds in question under the terms of the agreement, and that he was bound to account to plaintiff for any bonds which he elected so to purchase at 85 cents on the dollar. As both parties agree upon this construction of the instrument, and as it was evidently so construed by Garrison and Griggs during the former’s life-time, it is unnecessary for me to pass upon the question of the correctness of this construction, although the agreement upon its face does not seem to contemplate a direct sale of the bonds, or any of them, from Griggs to Garrison. Defendants’ counsel admits that Garrison, in point of fact, purchased under this contract at 85 cents on the dollar 2,457 bonds, for which he gave credit to the plaintiff in the account with accrued interest from the previous interest day to the assumed date of purchase, namely, 1,907 bonds, with interest from May 1, 1881; principal, $1,620,950; interest to July 1, 1881, $19,-070 ; and 550 with interest from November 1, 1881, to April 1, 1882 ; principal, $467,500 ; interest, $13,750.
    “ The precise date or dates at which the purchase of the 3,407 bonds is claimed by plaintiff to have been made is not very clearly defined. Plaintiff in his original complaint fixes May 1, 1881, as the date of the purchase of 3,307 of the bonds, and leaves the date of purchase of the remaining 100 bonds indefinite. In his amended complaint the date of the purchase of the entire amount is left indefinite. His testimony on the trial is far from clear or consistent on the question of the precise time or times at which he claims the purchase to be made. On the oral summing up before me, counsel for plaintiff, in his able and forcible and ingenious argument, fixed the date of the purchase of the entire amount as June 1, 1881. In the requests to find, submitted to me on behalf of plaintiff, it is claimed that Garrison purchased 1,500 of the bonds on May 1, and 1,907 on June 1, 1881 (29th proposed finding of fact).
    
      “ On consideration, however, of the whole evidence in the case, I am constrained to find that plaintiff has failed to prove the alleged purchase on any of these dates or at any other time. I am not unmindful of the ingenious and plausible argument of the learned counsel for the plaintiff, based on the delivery to Garrison of the proportion of stock to which he would have been entitled under the agreement of December 17, 1880, upon a purchase of the entire amount of bonds. There is very great force in this argument, although the inference drawn by plaintiff’s counsel from the coincidence in the amount of the stock received, with the amount of the bonus on the entire issue of bonds, 3,500, is much weakened when it is remembered that of these 3,500, eighty-four were not subject to the contract of December 17, 1880, being bonds belonging to the company, as I have heretofore pointed out, and 100 were then in the possession of William Walter Phelps, and were not in fact redeemed until the following October. The proper inference, it seems to me, to be drawn from this transaction, is that Garrison wished to have in his hands, subject to his own control, certificates representing a sufficient number of shares of stock to cover the bonus that he would he entitled to if he should thereafter purchase or sell to other parties the entire issue of bonds at eighty-five cents on the dollar.
    “ Nor am I unmindful of the testimony of the witnesses called by plaintiff as to admissions made by Garrison as to his ownership of the bonds. This testimony is entitled to much weight, but it does not seem to me to be convincing. Recollection of conversations is always uncertain, and the precise language used is seldom capable of exact reproduction. Besides, at the time of the conversations, Garrison did own most of the bonds and held all but ten of them, and he might well have used general language in speaking of the matter without meaning to be literally understood as the owner of all the bonds.
    “ The question seems to be too important to be decided upon mere admissions, especially as Garrison himself died before the time arrived for defendants’ testimony, and was, therefore, not able to give his version of these conversations.
    
      “ The conduct of the parties, subsequent to the alleged purchase of the bonds, seems to me absolutely inconsistent with plaintiff’s present contention. Plaintiff himself at no time claimed in his dealings or in his correspondence with Garrison to have sold the bonds to Garrison or to be entitled to their purchase price. There is no documentary evidence either in the voluminous correspondence between the parties or elsewhere, of such a claim on plaintiff’s part or of any admission of such a fact on Garrison’s part. The various instruments executed by plaintiff from time to time treat the bonds as belonging to him, and as held by Garrison as collateral security for his loans or advances. There is not even any evidence that plaintiff was aware that Garrison had charged himself on his books as purchaser of the 2,457 bonds which defendants admit to have been purchased. I do not deem it necessary to analyze in detail the evidence on this branch of the case. Suffice it to say, that I concur in the main with the conclusion of the former referee on this point.
    “ Included in the 2,457 bonds credited by Garrison to plaintiff on his books at 85, were 100 bonds which Garrison, about October 3, 1881, had redeemed from William Walter Phelps, and which Griggs had previously pledged with Phelps for a loan. Garrison paid to Phelps the sum of $32,400 to redeem these bonds, and charged plaintiff with that amount on his books. The numbers of the Phelps bonds were 101 to 200, both inclusive. The numbers of the bonds for which Garrison gave Griggs credit on October 31, 1881 (1,907 bonds), wrere Nos. 87 to 398 and 406 to 2,000, thus including the Phelps bonds.
    
      “ It follows that of the 3,407 bonds received by Garrison as above stated, 950 were not purchased by him under the contract of December 17, 1880, but were held by him as collateral, unless he acquired absolute title thereto by the papers executed by plaintiff, which will be hereafter more particularly referred to.
    “ In addition to these bonds, Garrison obtained 83 by a purchase, which I agree with the former referee in holding was a purchase from the company and has properly no place in this accounting. These 83 bonds were all but one of the 84 bonds which were reserved by the company under the tenth clause of the contract, and constituted no part of the bonds coming to Griggs under the contract. On January 8, 1881, the president of the company, Mr. Mack, gave plaintiff a letter authorizing him to sell the 84 bonds belonging to the company at 75 cents on the dollar, accounting to him, Mack, for the proceeds of sale of the same ; and subsequently, and on the 6th day of December, 1881, an account was stated between plaintiff and the company, in which he debited himself with the proceeds of the 84 bonds at 75 and credited himself with various payments for account of the company, the account showing a small balance in his favor. One of the bonds was sold by the plaintiff to some person other than Garrison; the other 83 were sold to Garrison, together with stock to the amount of thirty per cent, of the face of the bonds, the price payable by Garrison for the bonds and stock being 77i per cent, of the face value. Credits were given to plaintiff by Garrison in his journal and ledger for the amount, the credits, appearing on the ledger account under date of January 15, 1881, $54,250, and December 12, 1881, $10,075. This transaction amounted to a direct purchase of the bonds from Griggs, the latter accounting to the company for the proceeds. The debits and credits for these bonds must come out of this account on both sides.
    
      “ I now proceed to discuss the question of Garrison’s rights and liabilities as to the 950 first mortgage bonds received by him as collateral and not purchased under the agreement of December 17, 1880.
    
      “ On the 15th of March, 1882, a paper was signed by plaintiff, purporting to be an absolute transfer to Garrison of all his right, title and interest in the first mortgage bonds of the railroad ‘ amounting to $3,500,000 (except $ 10,000 which are not owned by me); said bonds are now in the possession of said Garrison, and held by him as collateral for loans made to me, and by this instrument I hereby sell, assign and transfer to him any interest I have, or may have in said bonds, or in any of them, over and above said loans.’
    “ If this instrument is to be given its natural and legal effect, it operates as a clear release to Garrison of plaintiff’s equity of redemption in the bonds held by Garrison as pledgee. Is there any reason why it should not be given its natural and legal effect ?
    
      “ Plaintiff has taken several inconsistent positions as to this instrument. He has claimed, through his counsel, that it was intended to be absolute and was confirmatory of the sale previously effected on or about June 1, 1881, of the entire amount of bonds at eighty-five cents on the dollar. He has also claimed, in his testimony, that it was intended to be absolute, but was executed by him under coercion, by reason of threats made by Garrison, unless it were executed, to refuse further advances and to foreclose the road. He has also claimed that it was intended to be absolute, but was, in consideration of an agreement by Garrison, to furnish money to build the road to Wheeling. He also claims, by his counsel, that it was not intended to be absolute, but as additional collateral security.
    
      “ As I have arrived at the conclusion, as heretofore stated, that Garrison did not purchase the entire amount of bonds, I cannot adopt the theory that this instrument was confirmatory of such purchase.
    “ Nor can I adopt the theory of coercion. I do not find sufficient evidence of what would amount to duress either in law or equity.
    “‘ In determining wliatconstitutes duress, equity adopts the legal definition and rules. Miller v. Miller, 68 Pa. St., 486 ; McLin v. Marshall, 1 Heisk., 678. Lawful arrest or imprisonment, or prosecution of the party himself, or threats of such lawful arrest, imprisonment, prosecution or litigation directed against the party himself, do not constitute duress ; the same is true of many other species of threats.’ 2 Pomeroy's Equity Jur., § 950, note 2.
    “ A threat to refuse to carry out an executory contract or to exercise a legal right to foreclose does not constitute duress within any of the authorities that I am aware of. Assuming the threat to have been made as claimed by plaintiff, it was a threat to advance no further moneys and to foreclose on his bonds. Garrison was either bound by an executory contract to advance such moneys or he was not. If he was so bound, then a threat to violate his executory contract cannot be considered coercion, as plaintiff had a complete remedy at law for such violation. If he was not so bound, there can be no duress in insisting upon his legal rights.
    “ Plaintiff was of full age and in full possession of his faculties. He cannot be heard to repudiate his own formal and deliberate acts because of threats on the part of Garrison. Plaintiff was under no duress either of body or goods.
    “ Nor do I find any sufficient evidence of an agreement on the part of Garrison to furnish moneys to complete the road to Wheeling in consideration of this transfer and the contemporaneous transfer of stock. Plaintiff’s testimony is not sufficiently clear, precise or consistent to satisfy my mind that any such agreement was, in fact, made. I concur with the former referee in his conclusions as to this question.
    
      “ It remains to consider whether this instrument is to be treated as absolute or collateral.
    “ I was at first inclined to hold that it should be treated as an absolute transfer. It appears that at that date Garrison had advanced a very considerable sum over and above the purchase price of the bonds purchased by him, and he may well have thought that the purchase at 85 was a questionable investment, and that he was entitled to whatever profit he might make on the remaining bonds as compensation for the risks he had incurred and was about to incur in furnishing funds for the enterprise.
    “ There was, therefore, a sufficient reason on Garrison’s part for demanding and on Grigg’s part for conceding an absolute transfer of the latter’s equity in the bonds.
    
      “ Further reflection and examination of the evidence on this branch of the case and further examination of the authorities have, however, shaken my first conclusion, and after hearing counsel for both sides again on this point, I have been convinced that the instrument under consideration was not understood or intended, nor can it be regarded in a court of equity, as an absolute transfer, but as additional collateral security. It is quite true that the instrument of December 17, 1880, would seem to have transferred all the bonds as collateral, but it was in terms limited to the loan of $40,000 therein referred to, and it may have been thought necessary or desirable to make a new instrument which should cover all past and future loans. With regard to this transaction, as with regard to many other transactions between these parties, it is difficult to arrive at a conclusion which is absolutely free from doubt. -The instruments executed by the parties seem to be at variance with the theories of both sides. The oral evidence is unsatisfactory and inconclusive. The plaintiff’s testimony is to be received with caution, owing to his interest in the controversy and the death of his adversary and the principal witnesses of his adversary, William E». Garrison and the bookkeeper Ward. There is practically no evidence for the defendants on the main issues of the case, the deposition of Commodore Garrison having been taken before this suit was commenced and at a time when it appears he was physically, if not mentally, shattered, and being very general and vague in its statements and throwing but little light on the questions in controversy. Under these circumstances, the conduct of the parties, the documentary evidence, the correspondence and the accounts, are the most reliable sources from which to draw conclusions as to the intent of the parties in their various transactions.
    
      “ Applying this test to the instrument of March 15, 1882, as to the bonds, we find that Garrison did not treat this instrument as altering his relations to plaintiff. On the 3d of April he credits plaintiff on his journal and ledger with 550 of the bonds at eighty-five cents on the dollar, with accrued interest since November 1, 1881, the date of the last interest day of the bonds. On the 8th of November, 1882, he takes a further assignment from plaintiff of all his interest under his contract, in-eluding in terms the bonds, thus implying that plaintiff still had an interest in the bonds.
    “ This conduct on the part of Garrison seems to me entirely inconsistent with any claim that the instrument of March 15, 1882, made Garrison the absolute owner of all the bonds.
    “Defendants’ counsel ingeniously construes this instrument as meaning that to the extent of the then existing loans, Garrison was still to hold the bonds as collateral, crediting plaintiff , up to the amount of such loans with any bonds he might take or sell at the agreed price of eighty-five cents on the dollar, all above that amount belonging to Garrison absolutely. I cannot, however, adopt this view of the instrument. It seems to me it must either be taken as an absolute assignment of all plaintiff’s interest over and above his then existing loans or as merely collateral. If the former construction be adopted, it would necessarily follow that no accounting could be demanded by plaintiff for any of the bonds other than those already purchased at eighty-five, since they were either worth less than the amount of the loans or more. If worth less, there was, of course, no equity whatever in plaintiff. If worth more, the equity would be released absolutely by the instrument. If the latter construction (that of collateral security) be adopted, the relations of the parties remained precisely as before.
    “ The rule is elementary in courts of equity and is well settled in the jurisprudence of this State, that a transfer or conveyance of property, though absolute on its face, may be shown to have been intended and understood by the parties as collateral security, and the fact that the relation of debtor and creditor exists between the parties, and that loans are made contemporaneously with or subsequently to the execution of the instrument is strong evidence that the instrument was intended as security for the loans and not as an absolute transfer. 1 Jones on Mortgages, §§ 282, 324, 325; 2 Wharton 
      
      on Evidence, § 1032 ; Horn v. Keteltas, 46 N. Y., 605.
    
      “ A subsequent release of the equity of redemption will not of itself be conclusive, especially where the relation of debtor and creditor still exists and loans continue to be made.
    “ Not only so, but even if the parties intend to have the instrument operate as an absolute release, there must be an adequate consideration to support it,> or equity will disregard it.
    “ ‘ The mortgagor may make a subsequent release of the equity of redemption, but an adequate consideration is necessary to support it. It must be for a consideration that would be deemed reasonable, if the transaction were between other parties.5 1 Jones on Mortgages, § 340.
    
      “ ‘ A transfer to a mortgagee of the equity of redemption by the mortgagor is c regarded with jealousy by courts of equity.5 It will be sustained only ‘ when in all respects fair and for an adequate consideration.5 Odell v. Motross, 68 N. Y., 504.
    ££ £ Contracts of that kind, made with the mortgagor to lessen or embarrass the right of redemption, are regarded with jealousy, as they are very apt to take their rise in unconscientious advantages assumed over the necessities of the mortgagor.5 1 Vern., 8 ; 2 Ib., 520; 2 Atk., 495 ; 2 Ball & Beatty, 278.
    “£ The general principle is, £ once a mortgage, always a mortgage ;5 and though, no doubt, the equity of redemption may be released on fair terms, yet the fairness and value must distinctly appear.5 Holridge v. Gillespie, 2 Johns. Ch., 34.
    
      “ £ A subsequent release of the equity of redemption may, undoubtedly, be made to the mortgagee. There is nothing in the policy of the law which forbids the transfer to him of the debtor’s interest. The transaction will, however, be closely scrutinized., so as to prevent any oppression of the debtor. * * * The release must also be for an adequate consideration.’ Peugh v. Davis, 96 U. S., 332.
    “ Even, therefore, if the parties had intended this instrument as an absolute transfer of the equity of redemption of the bonds, equity would disregard such intent unless supported by an adequate consideration.
    
      “ There was no consideration for this instrument, unless it he an agreement on the part of Garrison to make further advances, and this of itself would lead a court of equity to construe the agreement as collateral aiid not absolute.
    “ Tested, then, by the authorities as well as by the conduct of the parties, I conclude that this paper of March 15, 1882, is to be treated not as an absolute transfer, but as merely further collateral security for future advances.
    
      “ Similar reasons lead to the same conclusions as to the instrument of November 8, 1882. There seems to be the same absence of adequate consideration for this instrument as there was for the instrument of March 15th. No release or discharge of indebtedness took place, no rest was made in the account between the parties, and substantially no change of situation took place. I concur with the former referee in holding that this instrument cannot be regarded as an absolute transfer of title. The evidence shows that at the time of its execution there were negotiations pending for the sale of the entire Wheeling and Lake Erie enterprise to a so-called Vanderbilt syndicate, owning the South Pennsylvania Railroad. The paper executed by the plaintiff on the 8th of November, 1882, appears to have been intended to clothe Garrison with the apparent legal title to the bonds, stock, contract and other property covered thereby for the purpose of facilitating the negotiations and enabling him to make a transfer of title to the South Pennsylvania people if the negotiations should result in an agreement. I am of opinion that, notwithstanding this instrument, the relations of the parties remained as before, Garrison holding as pledgee such of the bonds and stock as had not theretofore been purchased by him or transferred to him absolutely under the instruments of December 17, 1880, and September 24, 1881.
    
      <e Defendants’ counsel claim that this instrument is to be taken for what it purports to be—an absolute transfer of title. It is claimed that plaintiff had made false representations to Garrison with regard to the probable cost of the road and with regard to the amount of subsidies and subscriptions, and that Garrison had been deceived and defrauded in other material respects, and that he insisted, at this stage of the matter, on becoming virtually the absolute owner of the entire enterprise, and that this was acquiesced in by the plaintiff. The difficulty, however, with this theory is that it lacks evidence to support it, and I am not prepared to follow the learned counsel for the defendants in then* endeavors to supply this lack of evidence by ingenious and plausible theories. The fact remains that Garrison continued his account with Griggs upon his ledger exactly as before ; the amounts paid by Garrison were charged as advances to Griggs thereafter as they had been theretofore ; there was no rest in the account, nor any change whatever in the methods of dealing between the parties. The theory of the defendants’ counsel that Garrison kept the account on his ledger open for the purpose of showing the net profit or loss of the enterprise, intending ultimately if he should realize a profit out of this transaction taken in connection with the associated matters of the Cleveland and Marietta Railroad Co. and the Wheeling and Lake Erie Bridge Co., to give plaintiff the benefit of a share of such profit, is again a theory quite without sufficient evidence to support it.
    “ In April, 1883, a settlement was had between the plaintiff and the Wheeling and Lake Erie Railroad Company under his contract with the company for the entire second and third divisions of the railroad, the road having been constructed from Huron to Zoar or Valley Junction on the second "division, and from Nor-walk to Toledo on the third divison. The road from Zoar or Valley Junction to Bowerstown had not been completed, nor had the first division from Bowerstown to Wheeling been built.
    “Plaintiff claims that the terms of this settlement were in effect dictated by Garrison, and were intended to be in furtherance of the scheme (then still pending, as plaintiff contends) for a transfer of the entire Wheeling and Lake Erie enterprise to the South Pennsylvania parties. I am unable, however, to take this view of the transaction. On the contrary, I am of the opinion that the settlement was made by the plaintiff voluntarily, and that he is bound thereby.
    “ The legal result of this settlement, in my opinion, was that plaintiff turned over to the railroad company the second and third divisions of the road and liquidated his claim to stock and bonds upon those divisions on the basis of 190 miles under his contract.
    “ Subsequently the road was completed from Zoar or Valley Junction to Bowerstown by Garrison or his representatives; but it did not earn enough to pay operating expenses and interest on the first mortgage bonds; and during the first trial of this suit foreclosure proceedings were instituted, the road was sold and a reorganization scheme was carried through, by which a new company was formed under the name of the Wheeling and Lake Erie Railway Company, which purchased the property of the old company and issued new bonds and stock.
    “ By the terms of the reorganization the holder of each of the first mortgage bonds then outstanding of the Wheeling and Lake Erie Railroad Company became entitled to bonds of the new company at the rate of three of the new bonds for four of the old, and also ten shares of the stock of the new company of the par value of $100 each, for each bond of the old company, upon paying $3 a share for the stock. Two coupons of the old bonds at $30 each were also refunded into first mortgage bonds of the new company at the rate of seventy-five cents on the dollar of the par of the old coupons; that is to say, $3,000 of the new bonds for $4,000 of old coupons, and also ten shares of stock upon payment of $3 per share for each $1,000 of coupons. At the time of the reorganization 2,850 of the first mortgage bonds of the old road were considered as outstanding, this being the entire amount that had then been earned under the construction contract, including the 84 bonds sold by the company direct as above set forth, the balance, 650, being surrendered as unearned and treated as unissued. As to the propriety of this surrender, there seems to be no room for serious question. Of course, as between the company and the contractor or his assigns the bonds had been delivered merely as an advance upon the contract, and if not earned the company was clearly entitled to have them surrendered unless they had come into the hands of a bona fide purchaser for value. Of this amount of 2,850, ten had never passed through Garrison’s hands, having been sold by the plaintiff or the railroad company. Eighty-three of the bonds had been purchased by Garrison at 771 cents, together with some bonus stock directly from Griggs as the representative of the company, as appears by a foregoing portion of this opinion. Deducting the 93 bonds, we have 2,757. Of this number 2,457 had been purchased by Garrison from the plaintiff at 85 cents on the dollar under his contract of December 17, 1880, leaving 300 to be accounted for. This 300 appears to be the same number of bonds that was reserved under the settlement of April, 1883, for the completion of the second division from Zoar to Bowerstown. I see no escape from the conclusion that for these 300 bonds Garrison’s estate must account to the plaintiff under the ordinary rules applicable to the relation of pledgor and pledgee. By the instruments of December 17, 1880, and November 8, 1882, Garrison became the pledgee of the contract as well as of the bonds and stock. No steps were ever taken to foreclose Griggs’ interest in that contract; no release on any new or adequate consideration was ever obtained from Griggs of his interest. The settlement made with the railroad company for the second and third divisions of the road, in April, 1883, recognized Griggs’ interest as contractor as still existing. The accounts kept by Garrison and his representatives after that date recognized Griggs as still a debtor for moneys paid from time to time on account of construction of the road. Under these circumstances, it seems to me, that the defendants must be held to have completed the construction of the road to Bowerstown as pledgees of the contract, and for the benefit of themselves as pledgees and of the plaintiff as pledgor, and that the plaintiff is entitled upon an accounting to recover from the defendants whatever they have received upon the bonds or stock earned under the construction contract over and above the amount of the plaintiff’s advances.
    “ It follows from the foregoing views that the defendants must account to Griggs for the proceeds of the first mortgage bonds and stock of the new company, which they received in exchange for the 300 bonds of the old company and the coupons belonging thereto.
    “ On this theory plaintiff must, of course, remain charged with the amounts expended for construction after April, 1883, upon this portion of the road.
    “In determining the amount for which defendants are chargeable, the rules of equity entitle the plaintiff to elect to treat the bonds and stock last disposed of as his bonds and stock, if that be to his advantage, there having been no notice of sale given to him, and there being no mode of distinguishing his securities from those of the defendants. This is the ordinary rule applied to cases of confusion of goods. Brantly on Personal Property, § 170.
    “ The principle is thus stated by Chancellor Kent in Hart v. Ten Eyck, 2 Johns. Ch., 108: í The rule of law and equity is strict and severe on such occasions. If a party having charge of the property of others so confounds it with his own that the line of distinction cannot be traced, all the inconvenience of the confusion is thrown upon "the party who produces it, and it is for him to distinguish his own property or lose it. If it be a case of damages, damages are given to the utmost value that the article will bear.’ Armory v. Dalamirie 1 Str., 505 ; Lupton v. White, 15 Vesey, 432 ; 2 Vesey & Beame, 265.
    
      “ The learned chancellor further held that the injured party might elect which particular part of the mingled property he would claim as his own.
    
      “ The amount with which defendants are chargeable as the proceeds of the bonds and stock of the new company received in exchange for the 300 old bonds and coupons I find to be $360,135, with interest from April 13, 1887.
    
      “ The next branch of this case calling for consideration is that relating to the rights of the parties with regard to the capital stock of the railroad company. The views I have thus far announced with regard to the papers of March 15, 1882, and November 8, 1882, with reference to the bonds, apply equally, of course, to the other paper of March 15, 1882, relative to stock and to that portion of the paper of November, 8, 1882, which refers to stock. I am of opinion that the shares of stock transferred by those two papers were held by Garrison and his representatives as collateral security up to the time of the foreclosure and reorganization of the road. By the foreclosure, of course^ the stock of the old company was wiped out and became worthless, except that the reorganization scheme provided that the stockholders of the old company might, by paying a certain amount in cash, receive stock of the new company. There is no evidence that the foreclosure proceedings were not begun and prosecuted in good faith. They were open and notorious and must have been known to the plaintiff. Indeed, he does not claim to have been ignorant of them during their progress. He made no offer to pay the cash assessment on his stock, nor did he make any request of defendants to pay the assessment on the stock held by them as collateral, nor do I think that as matter of law defendants would have been bound, if requested, to make any such payment. The duty of a pledgee is merely to preserve the pledge and to take such legal steps as may be necessary to prevent loss. He is not obliged to advance money out of his own pocket for the benefit of the owner of the pledged property under circumstances such as these. To so hold would be to impose a most onerous obligation upon the pledgee of corporate stock. As a matter of fact, the defendants did not pay any assessment upon their own stock or on the plaintiff’s stock, and the same ceased to exist for all practical purposes and became absolutely worthless. Hence, plaintiff is not entitled to any relief in this suit based upon the stock transferred by him to Garrison as collateral.
    “It is strenuously claimed, however, by plaintiff that Garrison agreed to complete the road to Wheeling ; that if so completed the road would have been a profitable concern; and that defendants are liable in damages for breach for this agreement. It is contended that plaintiff is entitled to be credited also with the ten per cent, contractor’s profits which he would have made on the entire road if completed to Wheeling in accordance with the alleged agreement of Garrison so to do.
    “ I fail, however, to find sufficient evidence to justify me in finding as a fact that Garrison ever made any such agreement. Plaintiff’s own testimony is very inconclusive on this point; his statements are indefinite and by no means entirely consistent with each other as to the time when or the terms in which any such agreement was made, and the matter is too important to be determined in plaintiff’s favor upon any but the clearest evidence, after Garrison himself is dead and therefore unable to testify. No documentary evidence is furnished nor any corroborating testimony sufficient to justify the imposing upon defendants of so onerous an obligation.
    “ The only remaining question of importance is as to the notes of the Wheeling and Lake Erie Railroad Company and the second mortgage bonds.
    “These notes represented the amount of $4,000 a mile, which the company was bound under its contract to contribute to the construction of the road, and also the contractor’s profit of ten per cent, on the work of construction. The company was unable to pay these amounts in cash, and in lieu of cash payment gave their notes to Griggs for the same. Griggs received from Garrison the money needed for the work of construction as it progressed, including the cost of right of way and of bridging, grading and tieing, for which the company should have paid at the rate of $4,000 a mile, and also a portion of the contractor’s profits on the same. Griggs endorsed the notes of the company over to Garrison, and he held them as collateral security for his advances. The relation of the parties under these transactions seems to me a perfectly simple one. As Griggs could not obtain the money from the company, he advanced it himself, and subsequently took the notes of the company therefor. He from time to time borrowed the money from Garrison as he needed it for his advances to the company and endorsed over the notes to Garrison when received by him from the company. Griggs was thus a creditor of the company ; Garrison was a creditor of Griggs and held the company’s notes as collateral.
    “ Plaintiff’s counsel has contended very strenuously and with great force and plausibility that the notes of the company were for direct advances by Garrison to the company, and that the amounts represented thereby should, therefore, never have entered into the account with Griggs either as debits or credits. I cannot agree with his theory. It is inconsistent with the conduct of the parties, with plaintiff’s pleadings and with the rulings of the general term.
    “ On May 1, 1883, the amount of the company’s notes thus held by Garrison was $1,949,710.72, and the interest thereon brought the amount up to $2,062,643.12. Garrison thereupon, pursuant to an arrangement made on the 19th of April, took from the company 2,280 of its second mortgage bonds at seventy-five cents on the dollar in lieu of a corresponding amount of the face of the notes. The general term has held that this transaction amounted to a purchase by Garrison at seventy-five, cents on the dollar of these second mortgage bonds and that to that extent the notes were canceled as existing obligations and to that extent plaintiff was entitled to a credit in his account with Garrison. Plaintiff must, therefore, he allowed an absolute credit of $1,710,000, being the purchase price of the bonds at seventy-five per cent, of their face, and also must be allowed accrued interest on the bonds so purchased, namely, $26,600, making a total of $1,736,600, with the interest on this total from May 1, 1883.
    “It remains to consider the rights of plaintiff as to the balance of the notes over and above this amount. It is not disputed that Garrison surrendered the notes to the company. It is not proved that plaintiff consented to such surrender. The general rule is that a creditor who surrenders a note of a third, party held by him as collateral without the consent of the pledgor thereby discharges the debt owing to him by the pledgor to the extent of the- face of the note so surrendered. Garlick v. James, 12 Johns., 146; Gage v. Punchard, 6 Daly, 229; Colebrooke on Collateral Securities, § 96.
    " “ In Exeter Bank v. Gordon, 8 N. H., 66, where an unauthorized surrender was made of a collateral note by the pledgee upon a compromise with the maker, the court held that the pledgee was liable only for the amount of the compromise, it being shown that the maker of the note was insolvent. The court held that an unauthorized compromise and wrongful surrender of the note ought not to put the pledgee in a worse plight than if he had actually converted the note wrongfully to his own use, and in the latter case he would clearly be liable only for its value (see opinion of Richardsor, Ch. J., at p. 80).
    
      “ Colebrooke on Collateral Securities says (§ 96): ‘ And cases may occur where a debt is not well secured and the pledgee may take less than is due and surrender the note. But this cannot be done where the debt is well secured,’ citing Zeinpleman v. Veeder, 98 Ill., 613.
    
      “ There is,- however, a manifest difference between a compromise of an uncollectible note and a surrender of such a note without any consideration received. In the latter case there is clearly an assumption of ownership which can by no possibility be shown to have benefited the pledgor.
    
      <( The authorities appear to hold that in such a case the pledgee elects to take the collateral note at the amount due upon its face, in satisfaction, to that extent, of the principal debt.
    
      “ It is quite true, as pointed out by defendants’ counsel, that in most, if not all, of the cases where this rule is applied, it was either proved or assumed that the maker of the note was solvent. It is also true that in the ordinary case of a conversion of a collateral note by a pledgee, the value of the note and not its face is the measure of damages, the face value being only the prima facie measure.
    “But where, as in this case, there is evidence of an election to cancel the note and to look to the maker as debtor on open account for the amount, I am of opinion that such election brings the case within the rule above stated, even though the maker of the note be insolvent.
    “ The entries made upon Garrison’s books appear to show such election. He debits the face value of the notes to the Wheeling and Lake Erie Railroad Co. on his ledger account with the company, crediting the purchase price of the second mortgage bonds. This debit remained upon his books until his general assignment in June, 1884, and forms part of the $>801,934.57, which appears on the inventory of the assignee as ‘ Open Account of Wheeling and Lake Erie R. R. Co.’ I am of opinion that he must be held to have chosen to look to the railroad company as his debtor for the amount of the notes surrendered above the purchase price of the second mortgage bonds, and to have thereby released to that extent the indebtedness of plaintiff to him.
    “ The rule laid down by the former referee, restricting the plaintiff to the actual damage sustained by the surrender, and fixing that damage by ascertaining the amount recoverable from stockholders other than Griggs under the constitution and laws of Ohio, while it would seem to be a just rule, and while in harmony with the general rule as to conversion of negotiable instruments, does not seem to me to be in accordance with the legal effect of Garrison’s acts as I find them set forth in the evidence and in Garrison’s books.
    “ It is to be borne in mind that at this time Garrison had not abandoned hope of making the enterprise successful. He contemplated the completion of the road to Bowerstown, which, of course, would involve the expenditure of a considerable sum and which, equally of course, he would not have undertaken had he not considered it to be to his pecuniary interest.. He also took a large number of the second mortgage bonds of the company which he evidently regarded as of some value. While, therefore, the notes of the company were at that time uncollectible, there was a possibility of the company ultimately being able to respond in some shape or form for the amount. Garrison may, therefore, have concluded that as Griggs was not in a position to repay him his advances and redeem the notes he might as well make the claim his own and look to the company for future reimbursement after the road should have been completed.
    
      “ What was done, while, perhaps, not strictly amounting to a novation, may be so regarded by a court of equity in view of the peculiar relations of the parties. Garrison was virtually the railroad company. He owned two-thirds of the stock and controlled the board of directors. He occupied a fiduciary relation to plaintiff as pledgee of the notes. By surrendering the notes to the company he, of course, extinguished all claim-founded thereon. He thus, in effect, released plaintiff’s claim against the company evidenced thereby. Simultaneously he debits the company with the amount as a debt to himself. The company must be assumed to have assented to this arrangement. The only element" lacking to constitute a novation was the consent of plaintiff. By now coming in and ratifying and taking advantage of the transaction he gives liis consent, which Garrison at the time, as his pledgee and trustee, undertook to give for him. We thus have a substantial novation by which plaintiff is discharged from his debt to Garrison to the extent that Garrison became the creditor of the railroad company upon open account upon the surrender and cancellation of the notes. See 1 Parsons on Contracts, 217.
    The acceptance of the new for the original contract discharges the old debt, whether the new contract is ever performed or not. By accepting a third person in substitution for the original debtor the creditor assumes the risk of such person’s insolvency. 1 Parsons on Contracts (7th ed.), 248, foot-note 1.
    
      “ It follows from the foregoing considerations that plaintiff is entitled to credit for the entire amount of the notes surrendered over and above the purchase price of the second mortgage bonds. The credit given to plaintiff by the former referee for 84 bonds at 85 cents on the dollar does not seem to me to he correct, as I understand the figures. I have allowed plaintiff 2,457 bonds at 85 cents on the dollar, which, deducted from 3,500, leaves 1,043. 83 bonds are to he taken out of the account altogether, having been purchased through Griggs from the company at 771 cents on the dollar, leaving 960. Ten bonds were never received by Garrison, having been sold by Griggs or the company to other parties ; 300 bonds have been credited to the plaintiff at the amount realized therefor through the reorganization scheme, and the remaining 650 bonds were surrendered to the company as unearned. I therefore disallow the amount of 84 bonds at 85 per cent, and accrued interest thereon.
    
      “ Restating the account in accordance with the foregoing conclusions, we have the following result:
    The amount found due from plaintiff to defendants by the report of the former Referee, dated March 5, 1889,
    was.................................................... $2,171,395 84
    Charging back to plaintiff’s debit the credits given him by
    the former Referee for 84 bonds at 85%................ 71,400 00
    ‘ Accrued interest from May 1, 1881 ’.................... 33,605.60
    Interest to date of former Report......................... 36,821 96
    We have a total debit of................................. $2,313,223 40
    The allowance made to plaintiff by the former Referee for the proceeds of the 300 bonds
    must be reduced from..................... 363,712 50
    To.......................................... 360,135 00
    A difference of..............................$ 3,577 50
    Interest on this amount from April 13, 1887,
    to March 5, 1889........................... 405 42 3, 982 92
    Total Debits................................. $2,317,206 32
    
      Against this are to be credited the following
    items :
    2d Mortgage Bonds.........................§ 1,736,600 00
    Interest May 1, 1883, to March 5, 1889........ 608,967 72
    Balance of notes............................ 86,996 58
    Interest.................................... 30,506 71
    Total...................................... §2,463,071 01
    Deducting the debits....................... 2,317,206 32
    We have as the net balance against the defendants, as of March 5, 1889.................. § 145,864 69
    “ Plaintiff is entitled to judgment against defendants for this amount, with interest and costs. In computing the interest, however, in order to be entirely accurate and to avoid compounding, it will be necessary to recalculate interest on the several items to the date of my report.
    “ Counsel for the plaintiff will prepare an account in accordance with the foregoing conclusions. Both parties may submit requests to find on or before December 5th, 1891.”
    William B. Hornblower, Referee.
    
      Supplemental Opinion.—“ A memorandum has been submitted to me on behalf of the defendants in connection with the requests to find which seems to call for some expression of opinion on my part. Defendants’ counsel calls attention to authorities to -the effect that where a party introduces in evidence entries from books of account of his adversary, he thereby makes the hooks evidence not only in his favor but against him. There is no doubt about this rule of law, and defendants are entitled to the benefit of any entries in the books of Garrison by way of counter-charge against the entries introduced in evidence by the plaintiff. The effect, however, of the evidence, is quite another thing. The entries are certainly not conclusive against either party. My attention is particularly called to the entry in Garrison’s books purporting to show a purchase of the company’s notes from Griggs at seventy-five cents on the dollar, and it is strenuously urged that plaintiff is bound by this entry, having introduced the account in evidence. I do not so understand the rule. I am, however, concluded on this subject by the opinion of the general term in this case, where Judge Sedgwick, delivering the opinion of the majority of the court, after adverting to the entry in Garrison’s books showing’ a credit to Griggs of seventy-five per cent, of the face value of the notes, says : ‘ While I think that at least the plaintiff was entitled to he credited in the accounting before the referee with the amount of the first credit and interest to the date of the accounting, I also am convinced that the testimony in controvertibly showed that the plaintiff was entitled to a larger credit. In my opinion the resolution and the subsequent facts show a purchase by Garrison of 2,280 second mortgage bonds for his own benefit, and not as a substitute for the notes at seventy-five cents on the dollar. * * * Upon actual delivery for the bonds, they became extinguished for Garrison’s benefit in the result to the value of the money that Garrison would otherwise have owed the company for the bonds. To the extent the collateral security was extinguished, the original indebtedness for which the security had been given was extinguished, and for this reason the plaintiff should have had on the accounting a credit of .75 per cent, on the par value of the bonds, or, if my calculation be correct, $1,710,000 and interest from May 1, 1883. The transaction is the same as if the plaintiff had received as collateral for (the payment of) his advances for the company bonds of the company, and had then sold them to Garrison at seventy-five cents on the dollar with consent of the company.’ In view of this explicit ruling by the general term, I do not see how this matter is open to any further question before me. The only question that I have considered as open with regard to the notes is as to the balance over and above this amount, and it is as to this balance that I have considered the testimony and have drawn conclusions from the entries in Garrison’s books. These entries are not in the account with Griggs, but in the account with the railroad company, and I have followed them literally.
    “ Defendants’ counsel also urges that plaintiff having elected to treat the entire issue of first mortgage bonds as sold at 85, must be held to such election, and cannot recover more than 85 for any of the bonds on the theory of a pledge. This would undoubtedly be true if plaintiff’s election had been acquiesced in by the defendant. If so acquiesced in, however,- it would have to be acquiesced in as a whole and not in part. Plaintiff’s contention is that the entire issue of bonds was purchased at 85 cents on the dollar, and that plaintiff is entitled to an absolute credit for that entire amount, irrespective of the subsequent transactions. This is disputed by the defendants, and I have decided in defendants’ favor on this point. Having so decided, it became necessary to ascertain what the real relations of the parties were to the bonds, and I concluded that the relations were those of pledgor and pledgee, and my decision is based on this theory. Having accepted defendants’ theory of the bond transaction, I do not see how plaintiff can be held bound by any election which has not been accepted by the defendants nor by the referee.”
    
      John H. Post, attorney, and Robert G. Ingersoll and Calvin Frost of counsel, for plaintiff.
    
      William R. Bronk, attorney, and Melville C. Day of counsel, for defendants.
   Per Curiam.

At the beginning of the last trial the attorneys of the parties stipulated that the evidence introduced upon the former trial as printed in the case upon the former appeal, should be the evidence of the parties upon the new trial. By the stipulation all objections and exceptions to the admission or exclusion of evidence, as the same appeared in said case, were waived, and no exceptions to the admission or exclusion of evidence were taken by either party upon the new trial.

The evidence thus submitted supports the findings of fact made by the referee and these findings fully sustain the conclusions of law based by the referee thereon. The referee seems to have given proper effect to the rulings made by the general term of this court on the former appeal so far as they are applicable, and upon the whole case no exception appears on either side which calls for a reversal or modification of the judgment.

Upon the appeals of both parties the judgment should be affirmed upon the opinion and supplemental opinion filed by the referee, but without costs to either party.  