sideration for an express promise made upon it. Such agreement may be express or implied by law. Ballard v. Burton, 64 Vt. 387, 24 Atl. 769, 771, 16 L. R. A. 664."

It has been suggested that, in case the judgment is affirmed and Nelson is compelled to pay the note, he could not recover from the bank the amount so paid in redemption of the note, even though the bank should succeed in recovering the stolen funds, and hence the giving of the note was without consideration. In answer to the suggestion, it is sufficient to say that one of the conditions upon which Nelson executed the note was that he would be reimbursed in case the stolen money should be recovered. We know of no rule of law that would enable the bank, after having ratified the agreement entered into for its benefit and accepted the note, to later on repudiate its obligation to reimburse Nelson in case the stolen money was recovered. No authority has been cited, nor do we think any can be found, that supports such an inequitable and unjust proposition.

Conceding, for the sake of the argument, that, as a matter of fact, no legal liability attached to Nelson for the loss of the money, yet this would not, under the facts and circumstances disclosed by the record, prevent a recovery by the bank in this action, because the undisputed evidence shows that all the parties to the original controversy, including Nelson, actually believed that he was liable to the bank for at least a portion of the money stolen, and that the compromise with respect thereto was made in good faith. Under the great weight of authority the compromise was a sufficient consideration for the note.

In Page on Contracts, section 321, the author says:

"The general rule that the legal right acquired or forborne must be a genuine one to constitute a valuable consideration must be qualified in case of compromises of disputed claims. If a bona fide dispute exists as to the validity of a claim, and the parties compromise such dispute by mutual agreement, such compromise is valid; as the mutual releases of rights which are at least apparent, and are upheld in good faith, form a consideration each for the other. If claims thus compromised are each genuine and upheld 38 Utah-13

in good faith, the fact that one of them is invalid does not avoid the compromise, and the validity or invalidity of the original claim is immaterial. If it were not for this rule, few, if any, compromises could be upheld"-citing cases.

In 6 Am. and Eng. Ency. Law (2d Ed.), 711, it is said:

"Closely allied with the preceding, and based upon the same general principle, is the compromise of doubtful and unliquidated claims. As it is the policy of the law to discourage litigation and to enforce voluntary settlements effected without the interposition of the law, it has uniformly been held that the compromise of dounbtful claims is valid; the mutual release of their respective rights by the parties to the controversy, and the avoidance of the expense and annoyance of a suit at law, being a sufficient consideration for the composition." And on page 714 of the same volume it is said: "After a compromise has been entered into in good faith, in an action to enforce the satisfaction, the merits of the original controversy cannot be called into question."

In 8 Cyc. 510, the rule is stated as follows:

"The law favors the avoidance or settlement of litigation, and compromises in good faith for such purposes will be sustained as based upon a sufficient consideration, without regard to the merits of the controversy or the character or validity of the claims of the parties, or even though a subsequent judicial decision may show the rights of the parties to have been different from what they at the time supposed. The real consideration which each party receives under such a compromise is, according to some authorities, not the sacrifice of the right, but the settlement of the dispute."

(Perkins v. Trinka, 30 Minn. 241, 15 N. W. 115; Armijo v. Henry, 14 N. M. 181, 89 Pac. 305, 25 L. R. A. (N. S.) 275, and cases cited in note.)

Moreover, Nelson, on cross-examination, testified that the payment of the fifty thousand dollars by McCornick "added twenty-five dollars a share to the assets of the bank." At the time of the compromise he owned fifty shares of the stock, which, according to his own testimony, was enhanced twelvehundred and fifty dollars in value by McCornick's performance of his part of the agreement. Besides, the payment made by Nelson and McCormick saved the bank from a probable "run" and unquestionably saved it from being closed

by the Comptroller of the Currency. Therefore it may be fairly said that a valuable consideration in effect moved from McCornick to the defendant for the execution of the note. True, Nelson testified that when

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he signed the note he did not intend to pay it, but his own evidence as to what was said and done on that occasion, when considered in connection with the testimony of McCormick and Cutler, shows that he executed the note in good faith, and that at the time he did so fully intended to pay it.

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The claim made by Nelson that, at the time he signed the note and delivered it to the bank, he had no intention of every paying it, was an afterthought on his part. This is shown by his own evidence, which we have hereinbefore set out. We also invite attention to the following statements made by him on cross-examination: "Q. You told your counsel that at first you refused to put up this note for thirteen thousand, two hundred and fifty dollars? A. Yes, sir. Q. When was it you changed your mind and concluded to put it up? A. When Mr. Cutler said that would be fair. Q. Was it right then you had in mind that you would not pay it? A. I never expected to have to pay it, expected it would be collected some other way. Q. If it was not collected some other way, did not have it in mind then you would not pay it? A. Quite sure it would be collected; never had any other thought. Q. Did you have in mind then you would not pay this note if the money was not found? A. Never thought of it from that standpoint at all."

Furthermore, if the note was not delivered to and accepted. by the bank in good faith as an asset, and the entry made of it in the books of the bank was only for the purpose of deceiving the federal bank examiner or the officers of the bank who were not advised of the robbery mentioned, then it follows that under section 5209, Rev. St. U. S. 1878 (U. S. Comp. St. 1901, p. 3497), the entry of the note as an asset on the books of the bank was a "false entry," and every person who was a party to the fraudulent transaction, know

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ing it to be such, could be prosecuted criminally under said section. We are not, therefore, prepared to hold, on the bare assertion of Nelson, which assertion he, in giving his testimony, repeatedly contradicted, and which is inconsistent with the admitted facts leading up to and surrounding the transaction, that the note was given by Nelson and accepted by the bank and used only as a dummy to deceive the federal bank examiner and all other persons who were not parties to the transaction and who were doing or might thereafter do business with the bank. Moreover, it is a familiar rule of law that, where a transaction is explainable upon either of two different theories, one of which is consistent with good faith and fair dealing and the other involves fraud and deception, the explanation consistent with honesty and legality will be accepted unless the evidence clearly preponderates in favor of the illegal aspect of the transaction. In 1 Jones on Evidence this principle is aptly illustrated in the following language: "In the ordinary transactions of life, fairness and honesty are presumed, and conveyances, sales, and contracts generally are presumed to have been made in good faith until the contrary appears. In actions involving fraud, as in other cases where the facts present a double aspect, one consistent with fair dealing and the other involving dishonesty of purpose, the court, unless the scale decidedly preponderates for the latter, will strike the balance in favor of honesty and innocence." (16 Cyc. 1082.)

In this case the undisputed facts, as we view them, are not only consistent with good faith and honesty of purpose on the part of Nelson, McCornick, and Cutler in entering into the agreement by which the credit and financial standing of respondent bank was maintained, but are inconsistent with any other conclusion. It is conceded that it was understood and agreed between Nelson, McCornick, and Cutler at the time the note was executed that in case any of the money stolen should be recovered by the bank, or the loss made good by voluntary assessments on the part of the stockholders. Nelson should be paid one-half of the thirteen thou

sand, two hundred and fifty dollars put up by him before McCormick should be reimbursed for any of the fifty thousand dollars put up by him. Now, Nelson, knew that if, for any reason, he should fail to pay the note, there would be nothing due him under this part of the agreement, even though the money stolen should be recovered or the loss otherwise made good. It is not reasonable to suppose that if he, at the time he executed the note, intended to repudiate it later on, he would have insisted upon the parties with whom he transacted the business entering into this part of the agreement. In fact, the great weight of the evidence shows that the basis upon which McCornick and Nelson should be reimbursed in case the money stolen or any part of it should be recovered was the only question about which there was any serious controversy. The question, however, as to what Nelson's real intentions were in regard to the matter at the time he signed the note is unimportant, as the evidence, without conflict, shows that the parties with whom he transacted the business acted in good faith, and at the time had every reason to believe, and no doubt did believe, that he, too, was acting in good faith.

Counsel for appellant next contend that, as there was no evidence introduced as to the amount of attorney's fees actually charged by respondent's attorneys for their services in conducting the case "which had been paid or was to be paid" to them by respondent for such services, the court erred in allowing and including in the judgment the attorney's fees provided for in the note. Counsel in their printed brief say: "The allegations contained in the complaint

with reference to attorney's fees are all true and were therefore admitted in defendant's answer, and no issue upon such fact was raised, and of course no evidence introduced." Counsel do not contend that the fee provided for in the note and allowed by the court was unreasonable or in any respect unjust. What they claim is that it was incumbent upon plaintiff to prove not only the reasonableness of the fee, but that the amount was actually charged and paid or agreed to be paid by respondent to the attorneys for their services in