the partners takes the assets and assumes the liabilities, the other partner thereafter occupies the position of a surety, not only as between the partners themselves, but as to all others who have had dealings with the firm to whom notice of the new contract has been brought." [p. 88.] According to the rule of the first, Mearns was not released, because Mrs. Chatard did not assent to the arrangement between him and his partners by which they were to take the assets of the firm and become solely liable for its debts. Nor did she agree "to look to the other members of the firm for the payment of his [her] debt." With respect to the doctrine of the second class, the decisions of this court definitely settle what acts upon the part of a creditor will release a surety. In Reed v. Tierney, 12 App. D. C. 173, it is said: "The distinction is between an agreement for an extension for a definite period, and for which interest is to be paid, and an agreement for an indefinite extension of time. In the former, the agreement on the part of the debtor is to retain the money, as upon a new loan, and pay interest therefor for the certain time, and on the part of the creditor to forbear his right to enforce payment during the extended time; and this constitutes a valid agreement. While, on the other hand, an agreement for an indefinite extension may be terminated at any time by either party, at his mere will and option, and therefore does not constitute a binding contract." And the court approves the following extract taken from Green v. Lake, 2 Mackey, 162: "The general rule on this subject undoubtedly is that a contract between the creditor and the principal debtor, for forbearance for a limited time, shall be a defense to the surety, but it is necessary to show a binding agreement which absolutely ties the hands of the creditor. If the promise is made without any consideration at all, it does not bind him. For example, if the creditor simply agrees to extend the date indefinitely on payment of legal interest, that is no more than he would be entitled to without any agreement; he receives no consideration, and such promise is not binding." See also Walker v. Washington Title Ins. Co. 19 App. D. C. 578-588. The agreement, then, which would release Mearns under the circumstances of this case must be one providing "for an exten

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Opinion of the Court.

[47 App. sion for a definite period" and requiring the payment of something more than legal interest. The contract that Henry made with Chatard was not for a definite period, did not provide for the payment of more than legal interest, and was not therefore binding. This being so, it did not have the effect of releasing Mearns, even though we consider him a surety. Other juris dictions hold the same doctrine. In Campbell v. Floyd, 158 Pa. 84, 25 Atl. 1033, a partner had retired from a banking concern, the remaining partners assuming the debts and continuing the business. Plaintiff, a depositor, with full knowledge of the facts, continued his deposit with the new firm, and received from it interest at the same rate which had been previously agreed upon. The court, assuming that the retired partner bore the relation of surety to the depositor, said: "Mere forbearance, however prejudicial to the surety, will not release him. Nor will indulgence accompanied by payment of interest by the debtor and a promise of punctuality in the future have that effect if the creditor's hands are not tied. And while a surety may be discharged by an agreement between the creditor and the principal debtor for an extension of the time of payment, the essential elements of a contract must be present. Not only must the agreement be upon a sufficient consideration, but the time of payment must be definitely fixed. Otherwise the surety will not be discharged." Citing authorities. To the same effect, see Eagle Mfg. Co. v. Jennings, 29 Kan. 657, 44 Am. Rep. 670; Fang v. Hamble, 21 Iowa, 140, 89 Am. Dec. 561; Johnson v. Emerick, 70 Mich. 215, 38 N. W. 223. Appellant concedes the soundness of this doctrine, for he says: "It is not contended in this case that there was any agreement for extension of time such as would preclude a suit for the money by Mrs. Chatard under the new agreement. The claim in this case is based upon a new agreement, to which the surety in this case was not a party. Such an agreement founded upon valid consideration discharges the retired partner." The agreement then, according to the appellant, must be founded upon valid consideration," but there is no such consideration here. Therefore the agreement is without effect.

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Finally it is urged that the court erred in the sum which is included in its judgment for thirty shares of stock which had not been sold. Appellant says there was no definite evidence of the value of this stock; consequently, the damages with respect to it are unliquidated, and no judgment can be rendered for such damages under rule 73 of the lower court. Deane v. Echols, 2 App. D. C. 522. We think this discloses a misapprehension of the facts. When appellee gave the firm the right to hypothecate or dispose of the stock in any manner, and for any purpose to assign and transfer the same, it was done for the use and benefit of Mrs. Chatard. The authority was granted so that, if the stock was sold, it could be properly assigned, or if Mrs. Chatard, traveling in Europe, needed to borrow money on the stock, her brokers, the partnership, might make the necessary arrangement. It would be absurd to say that, under the circumstances disclosed by the record, it was the intention of Mrs. Chatard to authorize the firm to pledge the stock for its own benefit, or for the benefit of anyone else but the owner. Therefore, when the firm on the 9th of May, 1913, seven days after it had come into the firm's possession, pledged the stock for its own use, it did that which it had no right to do, and became then and there liable for its value. Eureka County Bank v. Clarke, 6 C. C. A. 571, 130 Fed. 325; Schwarz v. Kennedy, 142 Fed. 1027; Strickland v. Burns, 14 Ala. 511. The stock was worth at that time $91.50 per share, or in all $2,745; for the affidavit of merit so alleges, and it is not denied. It appears that the firm redeemed the stock from the first pledge, but that the new firm rehypothecated it on July 16, 1914. Appellant says he is not responsible for this last hypothecation. To this we cannot assent. The liability which he assumed as a member of the old firm, when the stock was first placed with it. continued until the stock was accounted for to its owners, or he was released therefrom. Blew v. Wyatt, 5 Car. & P. 397; Daniel v. Cross, 3 Ves. Jr. 277, 30 Eng. Reprint, 1009, 3 Revised Rep. 94; Bernhard v. Torrance, 5 Gill. & J. 383, 30 Cyc. 608; Easton v. Wostenholm, 70 C. C. A. 108, 137 Fed. 524: Neal v. Smith, 54 C. C. A. 226, 116 Fed. 20. It was not accounted for, and we have found he was not released; therefore he was

liable for it either as of the date of the first or the second hypothecation. Appellee could have selected one or the other. She chose the latter, and thereby, according to appellant's own argument, claimed $105 less than she would have been entitled to if she had taken the first. Of this appellant cannot complain. The judgment is right, and is affirmed, with costs.

Affirmed.

Mr. Justice HITZ, of the Supreme Court of the District of Columbia, sat with the Court in the hearing and determination of this appeal, in the place of Mr. Justice VAN ORSDEL,

BRADLEY v. DAVIDSON.

EQUITY; PLEADING; EVIDENCE; EXCHANGE OF LANDS; BROKERS; FRAUD; CUSTOM; REMEDY AT LAW; LACHES; WITNESS; CROSS-EXAMINATION; EXPERTS; PARTIES TO ACTION.

1. The answer in a suit in equity is not evidence, where an answer under oath is waived, and the hearing is not upon bill and answer. (Citing Baker v. Cummings, 4 App. D. C. 230; and Forrest v. Wardman, 40 App. D. C. 520.)

2. Answers to interrogatories in a bill in equity required to be under oath are evidence only in so far as they are responsive to the interrogatories.

3. A firm of real estate brokers are liable to a client, towards whom they occupy a confidential relationship, for the damages resulting to him from their breach of trust in effecting, while secretly representing the other party, an exchange of valuable property of their client for the equity, known by them to be of little value, of the other party in other property.

4. The existence of a custom among real estate brokers in cases of exchange of properties to divide the commission between the two

NOTE. On fraud and secret dealings of real estate brokers as affecting their commissions, see comprehensive note in 45 L.R.A. 33, and note in 24 L.R.A. (N.S.) 659.

brokers is no defense to a suit to set aside an exchange of property in which the plaintiff's brokers secretly represented the other party, for the reason that no custom will be permitted to override a positive and salutary rule of public policy.

5. A bill in equity to set aside an exchange of real estate for fraud of the plaintiff's brokers in effecting the exchange will not be dismissed upon the ground that an action at law would have afforded the plaintiff adequate relief. (Mr. Chief Justice SMYTH dissenting.) 6. The plaintiff in a suit in equity to set aside an exchange of real property for fraud of her brokers in effecting the exchange will not be held guilty of laches, where the allegation in the bill that she recently discovered the fraud is not denied in the answer, and must therefore be deemed to be admitted by the defendants. Justice SMYTH dissenting.)

(Mr. Chief

7. While the plaintiff, in an action based upon fraud, by calling as a witness a party to the alleged fraud, waives the right to impeach him in the ordinary manner permitted in cases of witnesses called by the opposing party, he may elicit from the witness by crossexamination all germane facts and circumstances, to the end that the real situation may be made to appear. (Citing Dumas v Clayton, 32 App. D. C. 566.)

8. A real estate broker may be compelled to testify as an expert, without any compensation other than the fee of an ordinary witness, as to the value of property which he has previously appraised. 9. A suit in equity to rescind a conveyance of land for fraud after the death of the injured party must be brought in the name of his heirs at law or devisees. (Following Webb v. Janney, 9 App. D. C. 41.)

No. 3048. Submitted November 8, 1917. Decided February 4, 1918.

HEARING on an appeal from a decree in the Supreme Court of the District of Columbia, sitting as an equity court, dismissing a bill to set aside an exchange of real estate.

Reversed and remanded.

The COURT in the opinion stated the facts as follows:

This appeal is from a decree in the supreme court of the District dismissing a bill to set aside an exchange of real estate. The case stated in the bill is substantially as follows: On or about December 9, 1910, Henry Bradley, since deceased, the