Page:Federal Reporter, 1st Series, Volume 7.djvu/851

 NAT. SHOE & LEATHER BANK OP AUB0KN ». BUALL. 839 �also pay to said Joshua M. and Mary A. Wagg, or to either of them, any and all moneys which they, or either of them, may hereafter loan to said flrm, and shall also save them hannless from liability on any note or notes hereafter indorsed by them for the benefit of said flrm, and shall keep said property insured in the sum of at least $2,000, for the beneflt of said Joshua M. and Mary A. Wagg, then this bill of sale should he void." �May is one of the defendants, and so is James S. Jordan, •who subsequently loaned $1,000 to Irving & Wagg on their notes, indorsed by Joshua M. and Mary A. Wagg. �It is shown that Irving & Wagg commenced business in May, 1879, with a capital only of some $700, borrowed of Joshua M. Wagg by his son, Hartwell, who was a member of the firm. In July, the firm being in need of money, Hart- well K. Wagg applied to John W. May for a loan of $600, proposing to give the note of the firm, indorsed by his father and mother, saying that he intended to secure them for this and any other liabilities they might afterwards incur by a mortgage of the firm property. Hartwell soon after informed his father what he proposed doing, and that he would give him the contemplated seeurity, which should also cover about $900 previously loaned by the father. The father assented to the arrangements, and when spoken to by May about it, told him "to make it all right so as to secure them," authorizing him to take the mortgage and keep it for him till he called for it. May thereupon made the $600 loan to the firm, taking their note, indorsed by Joshua M. and Mary A. Wagg. This mortgage was signed by Irving & Wagg, in the presence of May, and witnessed by him. From all the testimony I am satisfied that, at that time, the mortgagors expected that the mortgage would not be immediately re- corded; but as it would injure their credit, and they then hoped to continue in business, they intended it should be on that account withheld from the record for the time being, and were to be informed when it was placed on record. �Irving's testimony is "that Hartwell Wagg agreed with him, at the time he signed the mortgage, that the mortgage should not then go on record, as it would affect their credit, and that he should be informed when it should be put ��� �