are supposed to be expressions involuntarily forced out of him by the particular event, and thus have an element of truthfulness they might otherwise not have."

It must appear that the statement "was made at a time when it was forced out as the utterance of a truth, forced out against his will, or without his will, and at a period of time so closely connected with the transaction that there has been no opportunity for subsequent reflection or determination as to what it might, or might not, be wise for him to say."

Wigmore himself (section 1749) thus states it:

"In the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of one's actual impressión and belief."

Whether Devine did make the statement attributed to him was disputed on the proof, but, if he did, the jury might well have found that his mind was still dominated by the excitement of the catastrophe.

The authorities cited on defendant's brief do not apply to the facts of this case. In Waldele's Case, 95 N. Y. 274, 47 Am. Rep. 41, the statement was that of the injured party, a deaf mute, made in the sign language to his brother half an hour after the accident. In Luby v. Hudson River Railroad, 17 N. Y. 131, the statement was made by the driver of the horse-drawn railroad car which caused the injuries, after he had got off the car, been arrested by a policeman and taken out of the surrounding crowd. To the policeman's inquiry he said that the reason he did not stop the car was because the brakes were out of order. Apparently his mental processes were not controlled by the nervous excitement of the event; as the Court of Appeals said "he was manifestly excusing himself and throwing the blame on his principals." In Furst v. Second Ave. R. R., 72 N. Y. 542, the statement was by the conductor of the car, after the accident, that "if the driver had been looking he would not have run over the child." But the conductor was on the rear platform where he could not see the boy nor the driver, and knew nothing at all about the circumstances under which the accident happened. His guesses as to its avoidance were admissible on no conceivable theory.

There is nothing in the other assignments of error which have been argued here that calls for discussion. The judgment is affirmed.

ROBINSON v. FIDELITY TRUST CO.

(Circuit Court of Appeals, Eighth Circuit. May 15, 1911.)

No. 3,445.

1. GUARANTY (§ 6*)-REQUISITES AND VALIDITY-NOTICE OF ACCEPTANCE. Where, after negotiations, a bank prepared an agreement of guaranty of the present and future indebtedness of a corporation, and sent it to the president of the corporation, with a request that he sign and return •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

38

it, which was done, no further act of acceptance on the part of the bank was requisite to render it effective with respect to future loans.

[Ed. Note.-For other cases, see Guaranty, Cent. Dig. § 8; Dec. Dig. § 6.*]

2. GUARANTY (§ 16*)-CONSIDERATION-SUFFICIENCY,

An agreement by a bank to extend the term of credit of a corporation which is indebted to it, by renewal of its notes as they mature, is a sufficient consideration for a guaranty of the indebtedness, both present and future, by the president of the corporation.

[Ed. Note.-For other cases, see Guaranty, Cent. Dig. §§ 14-17; Dec. Dig. § 16.*]

3. GUARANTY (§ 17*)-Failure OF CONSIDERATION.

Where a bank agreed to carry the indebtedness of a corporation to it for a further time on condition of a guaranty of the same by the president, with a proviso that, if financial conditions should change, so that it could not continue to carry the amount, it would notify him, so he could pay it down, there was no failure of consideration for the guaranty because of any change in financial conditions, where the bank continued to fulfill its agreement by renewing or extending the notes of the corporation without objection.

[Ed. Note. For other cases, see Guaranty, Cent. Dig. § 19; Dec. Dig. § 17.*]

Appeal from the District Court of the United States for the District of Minnesota.

In the matter of Josiah L. Robinson, bankrupt. From an order allowing a claim in favor of the Fidelity Trust Company, the bankrupt appeals. Affirmed.

See, also, 179 Fed. 724.

W. L. Converse (W. A. McDowell and D. L. Grannis, on the brief), for appellant.

Justin D. Bowersock (Lister M. Hall, on the brief), for appellee. Before HOOK, Circuit Judge, and RINER and W. H. MUNGER, District Judges.

HOOK, Circuit Judge. The Fidelity Trust Company, a banking institution of Kansas City, Mo., secured an allowance of a demand against the estate of Josiah L. Robinson, a bankrupt, and the latter prosecuted this appeal. The demand arose in this way: Early in October, 1907, a corporation of which Robinson was president owed the trust company on promissory notes about $50,000, and he desired. the line of credit for that amount extended for another year. After negotiations, oral and written, the trust company prepared and mailed to Robinson, October 23, 1907, a form of agreement containing, after preliminary recitals of the situation, a guaranty by him of the present and future indebtedness of the corporation, not exceeding in all the specified maximum and interest. He signed and returned it. Robinson was adjudged bankrupt April 10, 1908. The demand allowed against his estate was upon the guaranty of the notes.

[1] It is contended by Robinson that, as the guaranty was in part prospective, to that extent it required acceptance by the trust company But acceptance apbefore it became effective, and there was none.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

peared from the very course of the transaction. The trust company. sought the guaranty, and prepared the agreement and mailed it to Robinson with request that he sign and return it. Moreover, with respect to future loans, it was provided in the agreement that each transaction with the principal debtor should, without notice to Robinson, constitute an acceptance of his guaranty thereof. Again, but one of the notes was discounted after Robinson had agreed to guarantee them, and that was accepted by the trust company on the faith of his statement that he would sign the written agreement when it was prepared and sent to him.

[2] It is also contended there was no consideration for the guaranty. In contracts of guaranty, as in other contracts, a promise for a promise is enough, and the promise of the creditor may be for the benefit, not of the guarantor, but of the third party who owes the principal debt. In the case here Robinson's corporation owed the trust company. An extension of the line of credit for another year was desired. To secure it Robinson promised to guarantee the existing indebtedness and future renewals and replacements. In turn the trust company promised so to extend the credit. That was the round transaction in its completeness, and there was sufficient consideration for the guaranty of both existing and future indebtedness. The promise of the trust company appears by necessary implication from its conduct, the course of the transaction, and the provisions of the agreement which it required, prepared, caused the guarantor to sign, and retained in its possession. It could not have been heard to say it did not agree to carry the debtor corporation for the amount and period specified. The agreement recites the existing conditions, the desire for a continuance of the credit to enable the corporation to carry on its business, the request of Robinson that it be granted, and then his agreement of guaranty to accomplish the purpose set forth in the preambles. Before the year expired, Robinson's company went into the hands of a receiver, and Robinson himself, while insolvent, committed an act of bankruptcy. The trust company was then at liberty to proceed upon its claim.

[3] In the course of the negotiations referred to the trust company wrote Robinson October 8, 1907, that if he would guarantee the loans it would extend the credit for the year provided the financial conditions did not materially change from what they were then, and that if they did change, so that it could not continue to carry so large a sum, it would advise him in time so he could pay it down. It is claimed by Robinson in this connection that conditions did change materially, and that the financial panic of that year came to a crisis the latter part of October, its full influence being felt in Kansas City when the agreement of guaranty was signed, and therefore the event guarded against by the trust company came to pass, it was released from its obligation, and the consideration for his guaranty failed. The final written agreement contained no such condition as in the letter of October 8th, but a different conclusion would not result from bringing the letter and the other negotiations forward as part of it. On October 23d a note for $5,000, a part of the old indebtedness, was renewed at the instance

of an officer of the debtor corporation, and Robinson was advised of it on the 23d in the letter which transmitted the agreement of guaranty for execution. The trust company at no time claimed the financial conditions were such as to modify or lessen the full extent of its obligation. It gave no notice to that effect to Robinson or to his corporation, and at no time declined to renew or extend the old notes or take others in their place. Nor did the evidence show that the condition specified in the letter arose. The financial change which occurred affected the circulation of money rather than the renewal of loans previously made. Robinson's corporation had drawn out its credit balance, and a renewal of its notes would more naturally have required payments to the trust company than disbursements by it. About the middle of November, 1907, the debtor corporation was put in the hands of a receiver in a stockholders' suit, and there is no contention that before this occurred the trust company did not stand ready to fulfill its agreement.

The order is affirmed,

INTERNATIONAL BANKING CORPORATION v. PAYNE

(Circuit Court of Appeals, Second Circuit. May 8, 1911.)

No. 163.

1. TRIAL (260*)-REVIEW-INSTRUCTIONS.

The refusal of a requested instruction is not reversible error, where it was substantially covered by the charge given.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]

2. FRAUD (8 64*)—QUESTIONS FOR JURY.

Where plaintiff charged that defendant procured the delivery to him of foreign drafts, to be paid for later, by means of misrepresentation and without the ability or intention of paying for the same, it was competent for the jury to determine whether the grounds given by defendant for his asserted belief at the time that he could pay for the drafts were reasonable or not.

[Ed. Note. For other cases, see Fraud, Dec. Dig. § 64.*]

In Error to the Circuit Court of the United States for the Southern District of New York.

Action at law by the International Banking Corporation against Henry C. Payne. Judgment for defendant, and plaintiff brings error. Affirmed.

W. C. Prime, for plaintiff in error.

Before LACOMBE, COXE, and WARD, Circuit Judges.

LACOMBE, Circuit Judge. Plaintiff was engaged in the business of buying and selling foreign exchange. Defendant, who was a buyer of foreign exchange and had theretofore bought drafts from plaintiff, applied to it on October 22, 1907, for two drafts on London, amounting to upwards of $15,000. They were drawn and sold to

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

him upon an agreement that he would on the same day give his check for them. The answer avers that it was further agreed that the check should not be presented for payment until the following day, but we find no testimony in the record to support such averment. It appears that there was a custom of the business whereby, for convenience, drafts would be actually delivered to a purchaser the day before that on which the steamer which was to carry them sailed; the purchaser to pay the day after delivery, but the transaction to be considered by both parties as a cash transaction. Some prior purchases of defendant had been made on this basis, but a few weeks before the one in suit plaintiff had insisted that thereafter he must pay on the same day the draft was delivered to him, and he did so pay in each case thereafter, except that for the two drafts sold on October 22, 1907, he has never paid anything.

The theory of the complaint is that, when defendant applied for the drafts, he did not have sufficient funds to pay for them and had no grounds to expect that he would come into possession of sufficient funds, and that he obtained the drafts from plaintiff with intent to negotiate them without payment for them and to defraud the plaintiff of the amount of the drafts. It is further averred that he made representations to plaintiff as to his business, on which it relied in selling and delivering the drafts, which representations were untrue, were known to defendant to be untrue, and were made by him with intent to deceive and defraud the plaintiff and to induce the sale of the drafts.

Considerable testimony was taken on the issues raised by the pleadings, the case took over a day to try, no request to direct a verdict was made by either side, it was sent to the jury, and a verdict was rendered in favor of defendant. With the weight of the testimony, or the propriety of the verdict, this court is in no way concerned. By not requesting a direction in its favor plaintiff conceded that there were disputed questions for the jury to pass upon. No error in the admission or exclusion of testimony is assigned. The court, in charging the jury, first read, and charged, certain requests which each side had submitted, and then further instructed the jury colloquially. No objection was taken and no exception reserved to any part of the charge. Thereafter, and before the jury retired, plaintiff's counsel asked the court to charge:

"Defendant is presumed to intend the natural consequences of his acts. The jury were not to decide whether defendant's grounds were reasonable or not."

[1] To a refusal to entertain and charge this request, plaintiff excepted. The first half of it is correct as a proposition of law; but it would not be error to refuse to charge it in the language of the request, if the subject-matter had been sufficiently covered in the charge. The jury had already been instructed that if, when defendant ordered and received the drafts, he had no present means of paying for them, no reasonable expectation of securing means to pay for them, and that he knew that he would not be able to pay for them, it is not enough for him to testify, generally, that he intended to pay for them. It is for the jury to find his intent. Also that if the jury should find as