Page:Federal Reporter, 1st Series, Volume 1.djvu/288

 280 FEDEEAL EEPORTER. �for the accommoclation of Groves, to secure an antecedent indebtedness ; (3) that in consideration of a mortgage from Groves to Eonald, made September 18, 1876, to secure the same debt and a further indebtedness of $1,000, the said Eonald bound himself to, and did extend the time to, Groves ■within -which to pay said note, and agreed to forbear suit thereon without the knowledge and consent of said sureties, and that they were thereby released; (4) that the said Groves bas paid on account of said note, on the sixteenth of Novem- ber, 1876, $400, and on the fourteenth of February, 1877, $739.65; (5) that Groves shipped tobacco to Eonald for sale sufHcient to pay said note, and instructed him to so apply it, which he failed to do. �So far as the foreclosure is concerned, the first, second and fifth defences were abandoned upon the hearing. The c'aim of payiLe.it of $400 on the sixteenth of November, 1876, set up in the fourth defence, was also abandoned, the proof being clear ihit Groves paid Eonald the $400 as a part and on account of a purchase that day made by Eonald, of Groves & Shurley, for Groves' accommodation. It seems that Groves & Shurley claimed that Groves was indebted to them in about the sum of $5,000; that Eonald undertook to settle and did settle the claim for $1,100, and paid $500 in cash, of which Groves advanced him $400 on the sixteenth of November, 1876. �The payment of $739.65 of February 14, 1877, is still insisted upon, but, in my opinion, it is not made out by a pre- ponderance of testimony that such payment was ever applied, or intended to be applied, upon the note in suit. Defendant Groves was a farmer and tobacco speculator, and Eonald was the senior member of the firm of Eonald & Go., composed of F. S. J. Eonald and his son W. A. Eonald. �The business of this firm was that of tobacco warehouse- men and commission merchants. In January, 1875, GroM;, applied to them to advance him money to be used by him ji the purchase of tobacco, which he was to consign to them. They exacted of him a reasonable, security, as indemn against loss, before they would open an account with h. ,i. ��� �