[631] nowhere appears by the record that any objec- | himself and Samuel H. Fox, and not between Irrespective of this, section 858 of the Revised Statutes of the United States does not apply to the present case. It reads as follows: "In the Courts of the United States, no witness shall be excluded in any action on account of color, or in any civil action because he is a party to or interested in the issue tried: Provided, That in actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other, as to any transaction with, or statement by, the testator, intestate, or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court. In all other respects, the laws of the State in which the court is held shall be the rules of decision as to the competency of witnesses in the Courts of the United States in trials at common law, and in equity and admiralty." This section only provides that in actions by or against executors, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with, or statement by, the testator, unless called to testify thereto by the opposite party, or required to testify thereto by the court. Subject to this restriction, the section provides that, in the Courts of the United States, no witness shall be excluded, in any civil action, because he is a party to, or interested in, the issue tried. I. Willard Fox, although a party to, and interested in, the issues tried in these suits, cannot be excluded as a witness on that account, unless the case is covered by the proviso. The last clause of the section, which makes the laws of the State the rules of decision as to the competency of witnesses in the Courts of the United States, in trials in equity, "in all other respects" means "in all other respects" than those provided for in so much of the section as precedes the word "Provided," and does not qualify the clause which forms the proviso. Potter v. Third Nat. Bank, 102 U. 8. 163 [26:111]. In the present case, although Kate W. Goodwin was executrix of the will of her deceased busband, Henry W. Fox, she did not ask for a decree in her favor as executrix, but she claimed an interest in the Lake Zurich farm and in the La Salle Street lot only as devisee of that real estate under her husband's will; and the final decree finds that I. Willard Fox is indebted to her, as the legatee and devisee" of her husband, in the sum of $15,971.30. Moreover, the material transactions about which I. Willard Fox testified, namely, those relating to the instrument of February 20, 1869, and what took place after that date, were transactions between Before considering any of the other questions [632] raised in the case, it is proper to determine whether either party can go behind the statement of existing indebtedness set forth in the agreement of February 20, 1869. That agreement was made between I. Willard Fox and Fox & Co., and is signed by Samuel H. Fox in behalf of Fox & Co. In it both parties state that I. Willard Fox is indebted to Fox & Co. in the sum of $70,000, "over and above all discounts and set-offs of every name and nature. It leaves uncertain the amounts paid or to be paid by Fox & Co., to cancel the other debts of I. Willard Fox, but it agrees upon the sum of $70,000 as the then existing indebtedness of I. Willard Fox to Fox & Co. It goes on to speak of that indebtedness as "said original indebtedness," and the supplemental paper signed by Samel H. Fox speaks of "said debt of seventy thousand dollars." It must be held that the parties to the agreement deliberately fixed upon that sum of $70,000, because the agreement states that, in making it up, the parties took into consideration "all discounts and set-offs of every name and nature." There is no sufficient or satisfactory evidence to impeach the agreement, as respects I. Willard Fox, on the ground that his signature to it was obtained by fraud or duress or without his full knowledge of its provisions and consent to its terms. There is a great deal of testimony in the record bearing upon the question of the damages claimed by I. Willard Fox for the breakage of glass, and for "stained" glass, and for cutting down glass into smaller sizes, prior to February 20, 1869. The master allowed against Kate W. Goodwin the sum of $8,443.30 for such damages, and also added to the credit side of the account of I. Willard Fox $7,780.80, for interest which he found had been improperly included in the glass account, as a charge for interest accruing against I. Willard Fox prior to February 20, 1869. Kate W. Goodwin excepted to the allowance to I. Willard Fox of the $8,443.30, and the court sustained the exception and excluded that item. She also excepted to the disallowance to herself of the $7,780.80, and the court sustained that exception also. This was, in effect, a ruling by the court that the parties could not go behind the settlement of February 20, 1869, as to the 633 $70,000. As the heirs and representatives of I. Willard Fox have not appealed from the decree, the action of the court in sustaining the exceptions as to those two items must, of course, stand. But it is rendered immaterial by the general view we take of the case. It is contended by the appellants that the circuit court erred in overruling the second exception to the master's report, which was, that the master refused to allow, in favor of Kate W. Goodwin and against I. Willard Fox, the sum of $12,999.63 [$12,999.69], the same being for the amount of glass shipped to I. Willard Fox by Fox & Co, and received by him, between March 26, 1869, and November 5, 1869, The date of March 26, 1869, is stated by the master in his report to be March 23, 1869. The master disallowed that claim of Kate W. Goodwin, on the view that, in February, 1869, [634] If and before any of such glass was shipped, all pied in disposing of the glass; and that there count. The third exception also objects that the master failed to allow to Kate W. Goodwin any interest since February, 1869. The court sustained the third exception as to that branch of it also; and it is assigned here by Kate W. Goodwin for error, that the circuit court erred in failing to allow such interest. The effect of the ruling of the court, in sustaining the third exception, was to hold that the master improperly failed to allow to Kate W. Goodwin any interest after February, 1869. The court, however, in its decree allowed nothing to her as interest for the time after February, 1869, or on any amount, or for any time. The master says nothing in his report about the question of interest afterFebruary, 1869. It is now contended, on the part of Kate W. Goodwin, that, as the agreement of February 20, 1869, admitted the sum of $70,000 to be due, and it was a liquidated demand at that time, it should draw interest either from that time or from the 20th of August, 1869, the expiration of the six months named in that agreement. The Statute of Illinois (§ 2, chap. 74, Revised money lent or advanced for the use of another; The master disallowed the $7,780.80 of in- It is also assigned by Kate W. Goodwin for error, that the circuit court erred in refusing to sustain her fourth exception to the master's report as to the amount of assets of I. Willard Fox, properly chargeable to Fox & Co., and in increasing the amount of the same as found [635] [636] [637] by the master. The master found such | out regard to the sale or collection of them, or Indebtedness fixed by the agreement of Add the amount found by the master as Deduct the value of the assets of I. Wil- Balance $70,000 00 $15,971 30 W. Goodwin excepted to such report, as to the It is further assigned for error, that the cir We think it clear that the circuit court erred [638] [639] [640] [641] The above items of debit and credit are principal sums, and interest must be calculated and added, at the proper rate, from the proper dates, as before stated. It may be, also, that there will be some items of taxes paid, to be adjusted. the lot, or its proceeds, until it was sold. By | it, must be deducted from the balance found On the foregoing views, we are of opinion I. WILLARD FOX in account with Fox & Co. Amount found due by the agreement of February 20, 1869.. Glass furnished by Fox & Co. to I. Wil lard Fox, between March 23, 1869, Amount paid the First National Bank Amount paid the same bank, raised by a Amount paid by Fox & Co. in settlement It is manifest that the circuit court credited I. Willard Fox with the gross sum of $65,000, as representing the collectible notes, the paints, oils, etc., the fixtures, the Merritt mortgage, and the glass in the store, February 20, 1869, instead of crediting him merely with the proceeds of those assets, when realized. The $10,000 paid to the First National Bank by Fox & Co. was paid out of such proceeds. The $12,999.69 of glass furnished by Fox & Co., after February 20, 1869, was represented by some of the $15,000 of collectible notes credited to I. Willard Fox by the master, and forming part of the $65,000 credited to him by the court; and yet no allowance was made to Fox & Co. for the $12,999.69 of glass so furnished. It was proper that I. Willard Fox should pay the costs of the circuit court. The decree of the Circuit Court is reversed, and the case is remanded to that Court, with a direction to take such further proceedings as may be in accordance with law, and not incon $70,000 00 sistent with this opinion. 12,999 69 10,000 00 6,000 00 10,971 30 $109,970 99 THE WOODSTOCK IRON COMPANY, [643] v. THE RICHMOND AND DANVILLE EX. (See S. C. Reporter's ed. 643-663.) Contract to construct route of railroad, when 1. A contract by an extension company, an em- 2. The transaction on the part of such third party $58,627 92 Proper provision must be made to carry out our decision that the fourth exception to the report of July 11, 1884, was properly overruled. To this end the amount of $12,000, as the principal of the mortgage to Monroe on the Lake Zurich farm, with the interest due upon 4. Where the contract was with an employé of the railroad company to induce such employé to disregard its obligations, and the principal person making that contract on the part of the employé was a director and stockholder of the railroad company to be affected thereby, the contract is void. [644] [No. 180.] IN ERROR to the Circuit Court of Alabama, States for the Northern District Statement by Mr. Justice Field: "ANNISTON, CALHOUN Co., ALABAMA, [646] he Richmond and Danville Extension Cony: pany the proposition following-that is to say: tension Company will locate and construct, or "First. If the Richmond and Danville Excause to be located and constructed, the railroad of the Georgia Pacific Railroad Company (or of the new consolidated company now being formed, to be known as the Georgia Pacific Railway Company) by way of the Town of donate and convey, or cause to be donated and Anniston, the Woodstock Iron Company will conveyed, by good and sufficient deeds, to the "The plaintiff, which is a corporation created Richmond and Danville Extension Company, by and under the Laws of the State of New or as it may direct: 1. Strips or parcels of land Jersey, claims of the defendant, a corporation each one hundred feet wide-that is to say, created by and under the Laws of the State of fifty feet on each side of the center line of the Alabama, and located and having its principal location to be fixed for said railroad in, over, place of business in the County of Calhoun, in and through all and sundry the tracts and the State of Alabama, thirty thousand dollars lots of lands now owned and to be owned by [645] for the breach of an agreement entered into by the Woodstock Iron Company, wheresoever it on, to wit, the 18th day of November, 1881, situated, on and along the line of said location whereby and wherein said defendant agreed outside of the corporate limits of the Town of and promised that if said plaintiff would locate Anniston, and the Woodstock Iron Company and construct, or cause to be located and con- will, upon request of said Extension Company, structed, the railroad of the Georgia Pacific at any time, proceed to clear the said strips or Railroad Company (or of the new consolidated parcels of land from timber thereon, allowing, company then being formed and to be known however, the said Extension Company to have as the Georgia Pacific Railroad Company) by and take therefrom all that part of timber useway of the Town of Anniston, it, the said de-ful to it for the purpose of construction and for fendant, would donate and pay to the said cross ties. plaintiff, or as it might direct, the cash sum of "2. A strip or parcel of land in, over and thirty thousand dollars, to be paid in money as through the entire corporate limits of the Town to one half-that is, fifteen thousand dollars- of Anniston, so far as owned by the Woodstock when the said Georgia Pacific Railroad Com- Iron Company, as follows-that is to say, on pany connected its line with the line of the Al- the left or west side of the center line of the abama Great Southern Railroad Company at location to be fixed for said railroad, from the or above Birmingham, Alabama, and the other point of entering to the point of leaving said half-that is, fifteen thousand dollars-when corporate limits, a width of fifty feet, measursaid line was connected with the line of the ing from said center line, and on the right or Louisville and Nashville Railroad Company east side of the center line of the location to be (the North and South Alabama Railroad Com- fixed for said railroad a width of fifty feet, pany) at or above said City of Birmingham, measuring from said center line from the point provided said connections be made within of entering said corporate limits to a point ninethree years from date of said contract. And teen hundred and six and eight tenths feet plaintiff avers that it did cause to be located short of a point agreed, at or about the near and constructed the railroad of the said Georgia foot ot a hillock situated in a field in a westerly Pacific Railway Company by way of the Town direction from the depot of the Selma, Rome [647] of Anniston; that the said Georgia Pacific Rail- and Dalton Road; thence for a length of thir road Company connected its line with the line teen hundred six and eight tenths feet to said of the Alabama Great Southern Railroad Com-point agreed a width of one hundred and fifty pany at or above said Birmingham on, to wit, the 1st day of June, 1883, and with the line of the Louisville and Nashville Railroad Company at or above said city on, to wit, the 1st day of July, 1883; yet, although the said plaintiff has complied with all the provisions of said contract on its part, the said defendant has failed to comply with the following provisions thereof, viz.: It has failed and refused and still fails and refuses to pay, though often requested so to do, any part of said sum of thirty thousand dollars, except the sum of six thousand three hundred and twenty-five dollars, whereby it has become and is indebted to said plaintiff as aforesaid; wherefore this suit. "The said plaintiff claims of the said defendant the further sum of thirty thousand dollars for the breach of an agreement entered into by him on, to wit, the 18th day of November, 1881, in words and figures in substance as follows: feet measuring from said center line, and thence 3. All such additional strips or parcels of |