Opinion of the Court.

the deed is lawfully given to sell the incumbered interest at public auction, he has no trusteeship in regard to it, no duty to perform in respect to it. The debt itself, incurred by complainant, constitutes no part of the liabilities of the estate which he, as executor, represents. The sale, when made, touched that estate nowhere, did not diminish its assets in the least, nor withdraw from it any lands subject to the debts of creditors, and to the ultimate partition of the devisees and their assigns.

There is nothing in the transaction, from its inception to its final consummation, that imposed upon the defendant any duty incompatible with his right as a purchaser at the sale.

The principle that a trustee may purchase the trust property at a judicial sale brought about by a third party, which he had taken no part in procuring, and over which he could not have had control, is upheld by numerous decisions of this court and of other courts of this country. Prevost v. Gratz, 1 Pet. C. C. 364, 378; Twin Lick Oil Co. v. Marbury, 91 U. S. 587; Chorpening's Appeal, 32 Penn. St. 315; Fisk v. Sarber, 6 W. & S. 18.

It is true that the rule upon this subject as stated by some text writers is more stringent than that stated in these cases. 1 Perry on Trusts, § 205; Hill on Trustees, 250. We think, however, that the language employed by them does not present a thorough and perfect generalization of the essential principles pervading the decisions upon this subject. They are in manifest conflict with the uniform current of decisions of the Supreme Court of Texas, which are our guides in this case. Erskine v. De la Baum, 3 Texas, 406, 417; Howard v. Davis, 6 Texas, 174; Scott v. Mann, 33 Texas, 725; Goodgame v. Rushing, 35 Texas, 722.

From all of which we are of the opinion that the decree of the court below was correct, and it is accordingly

Affirmed.

Statement of the Case.

FALK v. MOEBS.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MICHIGAN.

A promissory note which reads: "Four months after date we promise to pay to the order of George Moebs, Sec. & Treas., ten hundred sixty-one & f dollars, at Merchants' & Manufacturers' National Bank, value received," signed: "Peninsular Cigar Co., Geo. Moebs, Sec. & Treas.," and indorsed : "Geo. Moebs, Sec. & Treas.," is a note drawn by, payable to, and indorsed by the corporation, and without ambiguity in the indorsement; and evidence is not admissible to show that it was the intention of the indorser in making the indorsement to bind himself personally.

THE Court stated the case as follows:

The plaintiffs in error, Gustav Falk and Arnold Falk, who are citizens of the State of New York, brought suit in the Circuit Court of the United States for the Eastern District of Michigan against the defendant in error, George Moebs, upon nine certain promissory notes made by the Peninsular Cigar Company of Detroit, upon which they sought to charge Moebs personally as indorser. All of the notes were in form like the following, differing only as to amounts and the time of payment:

"$1061.24.

DETROIT, MICH., Aug. 4th, 1880. "Four (4) months after date we promise to pay to the order of Geo. Moebs, Sec. & Treas., ten hundred sixty-one & dollars, at Merchants' & Manufacturers' National Bank, value received.

"PENINSULAR CIGAR CO..
"GEO. MOEBS, Sec. & Treas.

"Indorsed: Geo. Moebs, Sec. & Treas.'"

The first count of plaintiffs' declaration was special, and alleged in substance that on July 6, 1880, defendant was the secretary and treasurer of a body corporate known as the

Statement of the Case.

Peninsular Cigar Company, then engaged in the business of manufacturing, buying and selling cigars and tobacco in the city of Detroit; that plaintiffs were then doing business as tobacco merchants in New York City; that the defendant, as secretary and treasurer of said Peninsular Cigar Company, applied to plaintiffs for the purchase of certain merchandise, and offered in payment therefor the notes of said Peninsular Cigar Company, and it was then agreed between the plaintiffs and defendant that plaintiffs were thereafter to sell and deliver the merchandise so applied for, and any other goods which defendant, in behalf of said company, might thereafter apply for, and that in payment therefor the defendant should execute and deliver to the plaintiffs the notes of the said Peninsular Cigar Company, payable to the order of the said defendant, and by him personally indorsed to said plaintiffs; that said defendant thereafter ordered from the plaintiffs certain merchandise of the value of $7449, and in accordance with said agreement and in payment for said merchandise, the defendant, upon the several dates indicated and specified in the several promissory notes heretofore mentioned, and with the intent and design of binding, charging, and obligating himself as an indorser upon said notes with the liability of an indorser as defined by the law merchant, made, executed, and delivered to the plaintiffs said nine promissory notes.

To this special count were added the common counts in assumpsit, with a notice thereunder written that the plaintiffs would, under the money counts, give in evidence nine certain promissory notes, copies of which were set out, and in which notice it was stated that said notes would constitute the sole bill of particulars of the plaintiffs' demand.

To the special count in the declaration the defendant demurred, and to the common counts he pleaded the general issue. The demurrer to the special count was sustained, and the plaintiffs at the next term of said court brought the cause on for trial upon the issue framed upon the common counts in the declaration. Upon the trial, which was had before said court and a jury, the plaintiffs offered in evidence the notes referred to, and also the deposition of Arnold Falk, one of

Argument for Plaintiffs in Error.

said plaintiffs, which it was claimed tended to show that it was the intention of the defendant to bind himself personally in making the said indorsement upon said notes; but this evidence was excluded on the ground that it was not evidence of the personal liability of the defendant. Upon the ruling of the court excluding this evidence error is alleged.

Mr. Carlos E. Warner for plaintiffs in error.
T. Griffin signed the brief which was filed for same.

Mr. Levi

I. The indorsement does not, in law, import a corporate obligation, but, upon the contrary, imports an individual obligation of Moebs, the indorser. Carpenter v. Farnsworth, 106 Mass. 561; Slawson v. Loring, 5 Allen, 340; S. C. 81 Am. Dec. 750; Chadsey v. McCreery, 27 Illinois, 253; Robinson v. Kanawha Valley Bank, 44 Ohio St. 441; Tucker Manufacturing Co. v. Fairbanks, 98 Mass. 101; Moss v. Livingston, 4 Comstock (N. Y.), 208; Toledo Agricultural Works v. Heisser, 51 Missouri, 128; Hitchcock v. Buchanan, 105 U. S. 416.

II. If we be not sustained in the foregoing contention, then we submit that the written evidence leading up to the indorsement and showing the intention of the parties in respect to it, and explaining the sense in which they regarded it, was admissible, and that the court therefore erred in excluding the notes and the accompanying testimony.

We do not understand, as between the immediate parties to this contract, that any different rule applies from that which applies to the construction of any other contract. It seems to us in any event, that the court cannot say absolutely as matter of law, that the indorsement in question imports absolutely the indorsement of the corporation. It does not in terms refer to the corporation. The notes were not made payable to the corporation. The utmost that can be claimed for the indorsement is, that it fails to show absolutely whether it was intended to bind the corporation or the individual; in other words, that the indorsement was ambiguous, and if ambiguous, there can be no question but that written evidence leading to and contemporaneous with it, may be resorted to for the purpose of giving proper construction to that indorsement.

Argument for Plaintiff's in Error.

As between immediate parties, a contemporaneous writing. or a subsequent written agreement, may control the effect of a bill, subject to the same conditions that would be requisite in the case of an ordinary contract. Brown v. Langley, 4 Mann. & Gr. 466; Salmon v. Webb, 3 H. L. Cas. 510; Maillard v. Page, 5 L. R. Ex. 312; Davis v. Brown, 94 U. S. 423; Wade v Wade, 36 Texas, 529; Detroit v. Robinson, 38 Michigan, 108; Singer Manufacturing Co. v. Haines, 36 Michigan, 385; Lee v. Dick, 10 Pet. 482; Richmond, Fredricksburg &c. Railroad v. Snead, 19 Grattan, 354; Smith v. Alexander, 31 Missouri. 193; Mechanics Bank v. Bank of Columbia, 5 Wheat. 336: McClellan v. Reynolds, 49 Missouri, 312; Shuetze v. Bailey. 40 Missouri, 69; Musser v. Johnson, 42 Missouri, 74; S. 97 Am. Dec. 316; Pratt v. Beaupre, 13 Minnesota, 187: Kean v. Davis, 1 Zabriskie (21 N. J. Law), 683; S. C. 47 Am. Dec. 182; Hood v. Hallenbeck, 7 Hun (N. Y.), 362: Martin v. Cole, 104 U. S. 30; Brawley v. United States, U. S. 168, 173; Baldwin v. Bank of Newbury, 1 Wall. 234.

We submit: (1) That the notes themselves prima facie imported a personal and individual liability of the defendant, and that they should have been received in evidence; (2) That in any event, evidence should have been received showing the facts and circumstances under which said notes were executed and delivered by Moebs and received by the plaintiffs, and to whom the credit was actually given upon the indorsement. and that the court erred in excluding such testimony, and in directing a verdict for the defendant.

Mr. Elliott G. Stevenson for defendant in error. Mr. Don M. Dickinson was with him on the brief.

MR. JUSTICE LAMAR, after stating the case as above reported, delivered the opinion of the court.

Error is not assigned in regard to the judgment of the court sustaining the demurrer to the special count of plaintiffs' declaration in the original assignment of errors annexed to and accompanying the writ of error. It is, however, assigned for error in the brief filed in this court by plaintiffs in error