majority">Elliott, J.

The appellee sought and obtained a review of á judgment rendered against him. In his complaint for *375review he alleges generally that the court erred in its rulings, and we are inclined to the opinion that many of his allegations are so indefinite and uncertain as to be insufficient, but we do not decide anything upon this point, for we are satisfied that even if it be conceded that the allegations are all sufficiently specific, the record filed with the complaint shows that the first judgment was right and the last wrong.

The material facts, briefly stated, are these: The appellant held a promissory note executed by John W. Cole and assigned and delivered it to the appellee, who thereupon executed the following agreement:

“August 16th, 1882. If I can use the John W. Cole note to J. B. Mitchell, I will pay A. Mitchell seventy-six dollars.”

The appellee subsequently brought an action on this note against the maker, but joined in the saíne suit other causes of action. A trial was had, and the appellee obtained judgment against Cole for ten dollars, but the note was not introduced in evidence. The record does not inform us why ■the note was not read in evidence, nor on what claim the judgment against Cole was founded.

It appears from the record that the appellee did use the note assigned to him. It is true that it does not affirmatively •show that he received any money on it, but it does show that he used it as a cause of action. It is, indeed, doubtful whether he did not make such a use of it as to preclude any action upon it, but we need not decide whether the use he made of it did have this effect, for, it is quite clear, even conceding that there was not an adjudication upon it, that the use made of it was such as to embarrass the assignor.

There is, at least, a question as to the right to maintain a second suit upon it, and this question arises out of the use the appellee made of it, and it seems to us that having to that extent used the note, he must perform his contract. He certainly did make some use of the note, by filing it as a cause of action, and as that use clouds and obstructs the right to again sue upon it, he can not repudiate his contract. His *376use has put some obstruction in the way of collecting the note,, if, indeed, it has not completely barred another action upon it, and justice requires that he, and not the person from whom he acquired the note, should assume the expense and risk of collecting it. He did make use of the note, and this, certainly, is sufficient to charge him, unless he shows that it was-not his fault that he did not make the use successful. If he had shown that he could not successfully use the note because of a defence existing against his assignor, then there would be much reason for exonerating him from his contract; but-it does not appear that there was any cause for his failure-except that which is chargeable to his own conduct.

Filed April 17, 1888.

Judgment reversed.

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