#### Thomas Snell et al. v. Almond B. Ives, use, etc.

Action—on undertaking of third person. If a person makes an agreement with a railway company by which he buys all its property and credits, and assumes to pay all its debts, a creditor of the corporation may recover his debt of such party.

Appeal from the Circuit Court of McLean county; the Hon. Thomas F. Tiptom, Judge, presiding.

This was an action of assumpsit, by Almond B. Ives, for the use of Samuel FT. Young and Abner S. Bacus, against Thomas Snell, Abner Taylor, James Aiken and Thornton Snell, late partners under the name and style of Snell, Taylor & Co.

The plaintiff’s claim originated as follows: The township of Bloomington had voted a subscription of $100,000 to the Lafayette, Bloomington- and Mississippi ¡Railroad Company. It appears that, in ¡November, 1870, Ives, as supervisor of the town, being also a director of the railway company, delivered the bonds issued upon such subscription, to the company. They were dated ¡November 1, 1869, and had interest coupons attached, the first being for five months’ interest, and due April 1,1870. On January 28,1870, the directory of the railroad company passed a resolution that, whereas, certain townships had issued bonds, which had been sold on the market, on which a fractional coupon would be due April 1,1870; and whereas, it would be unequal to require the towns whose bonds had been sold, to pay such coupons, while, in respect to bonds not sold before April 1, 1870, the coupons were detached and destroyed, the treasurer be directed to pay all coupons due April 1, 1870, on bonds sold before that time, out of the general funds of the company.

Certain bonds of Bloomington township had, among others issued, been sold with the coupons falling due April 1, 1870, *280attached, but it does not appear how many. When these coupons fell due, there were no funds in the hands of the treasurer to pay them, and he got Ives to loan the necessary amount to the company to pay certain of these coupons.

Afterwards, the railroad company was transferred to Snell, Taylor & Go., with all the assets of the company,for $1,300,000, and they agreed to complete the road, and to assume and pay all the debts and liabilities of the company. Under this assumption the plaintiff sued Snell, Taylor & Go. for the money due him from the railroad company. The defendants defended, charging Ives with fraud. The plaintiff recovered judgment for the sum due him from the railroad company, from which judgment the company appealed.

Messrs. Rowell & Weldoh, for the appellants.

Messrs. Williams, Bure & Capeh, for the appellee.

Mr. Justice Dickey

delivered the opinion of the Court:

The charge of fraud, made by appellants, is not sustained by the proof. The weight of the evidence leads to the belief that the Lafayette, Bloomington and Mississippi Railroad Company was indebted to appellee. It was also indebted to divers other creditors. Appellants seem, from the proofs, to have made an agreement with the railroad company, by which they bought all the property and credits of the corporation, and assumed to pay all its debts. The evidence fully sustains the verdict, and we find no good reason for disturbing the judgment.

The judgment of the court below is affirmed.

Judgment affirmed.