interests may be, they, as well as that of the defendant James G. Olmstead, are junior and inferior to the lien of plaintiff's mortgage. Plaintiff asks personal judgment against the defendants Hamden A. Olmstead and James G. Olmstead for the amount of the three notes, with interest, attorney's fees and costs, and a decree of foreclosure against all the defendants. No personal judgment is claimed against the defendant Rivers, and the original notice so states.

On the tenth day of October, 1878, the defendant John D. Rivers filed in said cause his answer and application for receiver, in words and figures following:

"Comes now the defendant, J. D. Rivers, and for answer to the allegations of plaintiff's bill and amendment thereto,

says:

"First. That he admits that on or about the twelfth day of March, 1875, he executed and delivered to the plaintiff herein his certain promissory note for $4,000, due the first day of April, 1878, together with the six several and various coupons thereto attached, each in the sum of $200, due respectively as alleged and averred in said petition, and as shown in the copy of the mortgage attached to said petition.

"Second. And further answering, states that on said twelfth day of March, 1875, the said plaintiff loaned to this defendant the sum of $3,600, and then and there exacted and demanded of this defendant the corrupt and usurious interest of $400, and this defendant agreed to give and did give to said plaintiff the said corrupt and usurious interest, in the shape and form of his promissory note for $4,000; the sole and actual consideration for said note being $3,600, the surplus being corrupt and usurious interest, and the several and various coupons being for the interest to become due on said sum from the date of said loan.

"Third. And further answering, states that on said loan of $3,600 there was paid on or about October 1, 1875, $200; April 1, 1876, $200; October 1, 1876, $200; April 1, 1877, $200; which sums and amounts should be credited on said sum of $3,600 from the dates of the several payments.

"Fourth. And further answering, states that he did on or about the twenty-second day of January, 1876, sell and convey section 29, township 81, range 26, Dallas county-a part of which premises is included in the mortgage given to secure the payment of the note and coupons, copies of which are attached to plaintiff's petition-to one Hamden A. Olmstead; that the same was procured from this defendant by fraud

and deceit practiced by the said Hamden A. Olmstead; and that to delay and hinder this defendant from recovering said premises the said Hamden A. Olmstead has caused a conveyance to be made to his son Willis A. Olmstead, and by said Willis A. Olmstead to his other son, Charles S. Olmstead, and by said Charles S. Olmstead to his third son, James G. Olmstead, who now fraudulently and without any consideration has and holds the title to said premises; that the defendant long since instituted in the district court of Polk county his certain action on the equity side of said court against said Hamden A. Olmstead et al., to set aside said fraudulent conveyance, and that said action is still pending in said court, undisposed of. Defendant further states that said Hamden A. Olmstead and James G. Olmstead, his son, as this defendant is informed, have sold and disposed of all their personal property and crops on said farm, and have abandoned the same, and that this defendant, whose personal obligations are held by the plaintiffs herein, and other parties on the same farm, is really and actually the only person in interest; and the defendant submits that the assumption of said mortgage in the pretended deed to said Hamden A. Olmstead is and was only a private matter with said Olmstead, and by the proceedings now pending in Polk district court he will be released from all liability thereon.

"Fifth. And further answering, states that the farm of which the premises mortgaged form a part consists of 640 acres-360 in the mortgage, and 280 in another mortgage-on which are the personal obligations of this defendant, and that the premises in controversy consist of the improved part of the farm, and should be used to pay a part of the obligations on the remainder of the land.'

"Defendant further states that the rents and profits of the farm, as he is informed, will be wasted and squandered unless protected by this court. Defendant further shows that since the execution of said mortgage the said premises have materially depreciated in value, and the said farm has been cut off from the public road, also greatly depreciating its value, and, as defendant believes, will not now sell for enough to pay the plaintiff interest, taxes and costs in this action; and defendant further shows unto the court that in his suit pending at Des Moines he will be materially and seriously damaged if said premises, and the rents and profits, are not taken care of by the order and command of this court.

"Defendant further shows unto the court that the rents and

profits of said premises, by the time a deed can be executed by the sheriff under any foreclosure sale, will amount to at least $400 to $600, and that, in justice to all parties, the same should be saved and protected; and to the end that the rights of all parties be protected, defendant humbly prays the appointment of a receiver to take charge of said premises.

"Wherefore, defendant John D. Rivers asks that said note and mortgage, and coupons attached, be declared usurious; that the amounts paid be deducted from said sum of $3,600, and that judgment be rendered for plaintiff for only the amount due under the law; that a receiver be appointed to take charge of said premises, and that he shall have such other further and different relief as shall be agreeable to equity and good conscience. "Duly verified.

JOHN D. RIVERS, pro se."

On the tenth day of October, 1878, there was rendered in said court, by default, against said Hamden A. Olmstead and James G. Olmstead, a personal judgment for $4,641, and $156 attorney's fees and costs, and a foreclosure of the mortgageon said premises, and order for general execution after sale of mortgaged premises, to which the defendant J. D. Rivers in person protested and excepted.

On the tenth day of October, 1878, the plaintiff filed its demurrer to the answer of J. D. Rivers, in words and figures following:

"Comes now the plaintiff, and demurs to the answer of defendant J. D. Rivers, on the ground that the facts stated in said answer do not entitle the defendant to the relief demanded."

The court sustained this demurrer, and the defendant Rivers standing thereon, the court rendered against him a decree of foreclosure, cutting off all his right, title and interest in and to said premises. The defendant Rivers appeals.

John D. Rivers, pro se.

A. G. Kingsbury, for appellee.

DAY, J. 1. The demurrer to the answer was properly sustained. The answer admits the sale of the premises in question to Hamden A. Olmstead, and his assumption of the debt sued on.

The plaintiff accepts the personal responsibility of the Olmsteads, and makes no personal demand against the defendant Rivers. The defendant having sold the mortgaged premises subject to the mortgage, and being released from personal

responsibility for any portion of the judgment which may remain unsatisfied after exhausting the mortgaged premises, can in no way be affected by the amount of the recovery, and has no interest in the matter which will authorize him to plead any facts in reduction of the amount of recovery. He stands as a mere stranger to the proceedings. As such he cannot interpose the plea of usury. Carmi hael v. Bodfish, 32 Iowa, 418; Miller v. Clarke, 37 Iowa, 325. The mere fact that the defendant Rivers has an action pending against Olmstead to set aside the conveyance to him of the real estate will not authorize Rivers to interpose the plea of usury. That action may be determined adversely to Rivers. If it shall be so determined, all interest in or claim upon the property will be at an end. If the defendant had, in this action, made his answer a cross-bill, and set up the alleged fraud in the conveyance to Olmstead, and asked that the conveyance be set aside, that Olmstead be discharged from the assumption of the debts, and that his own personal liablility therefor be declared and enforced, a different question would have been presented. But we are clearly of opinion that, as the case now stands, the defendant Rivers cannot avail himself of the defence of usury.

Affirmed.

Filed October 28, 1879.

A party who signs a contract in his own name is not discharged therefrom by reason of having really signed on behalf of an unnamed principal. Payments upon a contract for erection of a church were agreed to be made and accepted at the time of acceptance of the building, in notes of the congregation in the hands of the party contracting for sueh church at the time of the contract. Held, that failure to pay in such manner at the time stipulated changed the claim into a money demand, and the party was not thereafter bound to accept the notes. Payment of part of an admitted debt is no consideration for a promise to forgive the remainder, and an agreement to accept less than the amount due on a disputed claim is not binding. Instruction held erroneous, as assuming a fact, the existence of which is to be determined by the jury.-LED.

Appeal from Polk district court.

This is an action for the recovery of an alleged balance due the plaintiff for the erection of a Catholic church in Polk county, Iowa, under a written contract with the defendant. There was a jury trial, and verdict and judgment for plaintiff for $913. The defendant appeals.

D. Donovan and Bryan & Bryan, for appellant.
Brown & Dudley, for appellee.

(117)

DAY, J. 1. The defendant entered into a written contract with the plaintiff for the erection of a church in question on William Ryan's property, Washington township, Polk county, for $1,215. The contract contains the following provision: "It is also stipulated that the notes of congregation who are to worship in said church, which notes are now in the hands of the party of the first part, are to be turned over without recourse to party of second part, as payment when building is accepted." The answer of the defendant contains the following paragraphs:

"2. That he executed the contract sued on as agent for the congregation for whom the church was to be built, and at the time said contract was executed the plaintiff knew that the defendant was acting as agent in behalf of the persons for whom the church was to be erected; that plaintiff then knew that all payments on said church were to be made from means provided by said parishioners, and not from the individual means of defendant.

"6. That on the day of, 187-, he made due and legal tender of payment to the said plaintiff of the sum then due him according to the terms of the contract, to-wit: in the notes of the members of the congregation that was to worship in the building; that plaintiff refused to accept or receive the same, and has never since expressed his willingness to accept them in payment of said alleged indebtedness."

On motion of plaintiff these divisions of the answer were stricken out. The abstract does not show the grounds of plaintiff's motion. The action of the court in striking out these portions of the answer is assigned as error.

(1.) The defendant entered into the contract in his own name, without disclosing the fact in the contract that he was agent, and contracted as such. There is a conflict of authority as to whether parol evidence is admissible to charge an unnamed principal. The authorities are uniform that parol evidence is not admissible to discharge the actual signer. Parsons on Cont. (5th Ed.) p. 55, note x. The defendant, having contracted in his own name, cannot now compel the plaintiff to look for payment to an aggregation of individuals perhaps possessing no corporate existence.

(2.) The building was completed in the latter part of November or the first part of December, 1874, and the key was delivered to Mr. Ryan by defendant's direction. Services have been held in the church by the congregation, and no objection is made that the church was not completed pur