[7] Instruction 4 is not subject to the criticism urged against it, for by it the court told the jury that for defendant to recover on his set-off he must prove by a fair preponderance of the evidence all the damage charged or some part thereof. This is a fair and resonable interpretation to be given this instruction, and no doubt the jury so understood it. and that they were knowingly sold for such purpose, and the warranty failed. It was also shown that an effort was made to repair the roof, and thus make use of the shingles, that it was impossible to repair, and that nothing less than removing the shingles and supplying another roof would prevent leaking. It first was the duty of appellee to minimize the damage as far as possible, and, having done this, he was entitled to recov sults of the breach of the contract. The instruction states a proper measure of damages in this case, a breach of an express warranty having been shown, and a good-faith effort having been made by appellee to make a proper roof out of the materials purchased of appellant for that purpose. [8,9] By the fifth the jury was told that there were two kinds of warranty in rela-er the damages which were the natural retion to the sale of personal property, but this instruction defines only one, express warranty. This is not harmful error, for in the following instruction the court defined the conditions and circumstances which would create an implied contract of warranty. True these two instructions are not models of ex; actness, but if appellant desired further instructions on this branch of the case, they should have been tendered to the court with its request that they be given. We are satisfied that this instruction, in view of the issues and the evidence, sufficiently informed the jury upon the law applicable to this branch of the case. [10] By instruction 6 the court informed the jury on the law relating to new appliances. There was some evidence tending to show that shingles such as are involved here had not been in general use, and had not been manufactured many years; and, although this question was not one of the controlling issues in the case as presented by the pleadings, yet it was germane to the evidence, and certainly could not have resulted in harm to appellant. [11] Instruction 7 was a correct statement of the law, and in view of what we have heretofore said in relation to the issues and the evidence supporting the same, we cannot see how the jury could have been misled or the appellant prejudiced by the fact that the court by it informed the jury that the knowledge of the agent who solicited the particular order in suit, concerning the pitch and angle of the roof, was the knowledge of the principal. This was germane to the evidence, and it was proper to instruct the jury on this branch of the case. In cases where things are sold for a particular use, damages for a breach of warranty are not confined to the difference between the value of the goods as they were and as they would have been if as warranted, but include "all such consequential damages as are the direct, immediate and probable result of the breach." 30 Am. & Eng. Encyc. Law (2d Ed.) p. 217, and cases cited. "Where an article is warranted fit for a particular purpose, the purchaser can recover the damages caused by an attempt to use it for that purpose." Sedgwick, Damages (8th Ed.) § 766. the "When, one sells and warrants a thing for a particular use, upon reasonable ground for believing that, if put to such use, a certain loss to the buyer will be the probable result if the warranty is untrue, seller is, under the warranty, chargeable with the loss, as one which may reasonably be supposed to have been in the contemplation of the parties when making the contract." Hale, Damages (2d Ed.) p. 367, quoting from Frohreich v. Gammon, 28 Minn. 476, 11 N. W. 88. The cause seems to have been fairly tried and a proper result reached. Judgment affirmed. KNIGHT v. KERFOOT et al. (No. 8,053.)1 (Appellate Court of Indiana, Division No. 1. Oct. 30, 1913.) 1. PAYMENT (§ 67*)-GIVING OF NOTE. The giving of a note for pre-existing indeltedness is prima facie evidence of payment, in the absence of any showing that such was not the intention of the parties. [Ed. Note.-For other cases, see Payment, Cent. Dig. §§ 162, 189-194, 198; Dec. Dig. 67.*] [12] On the measure of damages the court gave the following instruction: "If you find for the defendant on either paragraph of his set-off herein, the measure of damages in his favor will be the cost of the metal shingle roof, including the costs of the shingles if paid for, and the expense of putting them on the roof, less any amount you may find the shingles were worth after being removed from the roof. To the above should be added any reasonable expense which the defendant incurred in any attempt to repair and improve the, roof so as to make it conform improve the, roof so as to make it conform to the warranty under which they were sold." It was averred and proved that the shingles [Ed. Note.-For other cases, see Evidence, were warranted to be fit for a certain use, Cent. Dig. §§ 1912-1928; Dec. Dig. § 419.*] *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 2. EVIDENCE (§ 419*)—PAROL EVIDENCE-NOTE AS PAYMENT EVIDENCE OF INTENT. Where it was in issue whether a note was accepted in payment of a pre-existing debt, parol evidence is admissible to determine that question. 3. TRIAL (§ 395*)-FINDINGS OF FACT-SUFFI- | tion to the note, nor convert the surety into a principal. CIENCY. . [Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. §§ 641-650; Dec. Dig. § 200.*] 10. PRINCIPAL AND SURETY (§ 194*)-CONTRIBUTION BETWEEN COSURETIES-NATURE OF OBLIGATION. table doctrine, based on the fact that one surety Contribution between sureties is an equihas paid the debt for which he and his cosurety were liable, and that fact must be proved by the surety asking contribution. [Ed. Note.-For other cases, see Principal and [Ed. Note. For other cases, see Trial, Cent. Surety, Cent. Dig. §§ 605-623; Dec. Dig. § Dig. §§ 957-962; Dec. Dig. § 404.*] 5. TRIAL (8 404*)-FINDINGS OF FACT-CONSTRUCTION-INFERENCES FROM EVIDENTIARY FACT. Where subsidiary and evidentiary facts, which are found, are of such a character that ultimate facts clearly and necessarily arise therefrom, the court may infer the ultimate fact, and consider it as part of the findings. [Ed. Note. For other cases, see Trial, Cent. Dig. $$ 957-962; Dec. Dig. § 404.*] 6. PRINCIPAL AND SURETY (§ 200*)-ACTION BETWEEN COSURETIES-FINDINGS OF FACTSUFFICIENCY. Findings by the trial court that, at the maturity of certain notes upon which plaintiff and defendant were sureties, the defendant refused to become surety upon any notes for the renewal thereof, or for any other purpose, and thereupon the maker executed notes with the plaintiff alone as surety, and delivered them to the holder of the former notes, who stamped the old notes paid and surrendered them, are sufficient to show the payment and satisfaction of the notes on which the defendant was surety. [Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. §§ 641-650; Dec. Dig. 8 200.*] 7. TRIAL (8 397*)-FINDINGS OF FACT-FAILURE TO FIND ON ISSUE-EFFECT. Where the complaint alleged that the plaintiff paid the notes on which he and defendants were sureties by executing new notes therefor, the fact of payment was a material averment, and the failure of the plaintiff to secure a find ing of such payment by the court is equivalent to a finding against the plaintiff on that issue, and justifies the conclusion of law that the plaintiff is not entitled to contribution from the defendant. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 940-945; Dec. Dig. § 397.*] 8. TRIAL (§ 394*)-FINDINGS OF FACT-FACTS IN CONCLUSION OF LAW. A statement of fact in the conclusions of law cannot be considered in aid of the findings of fact. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 924-926; Dec. Dig. § 394.*1 194.*] 11. PRINCIPAL AND SURETY (§ 112*)-DISCHARGE OF SURETY-RENEWAL OF NOTE. The payment of a note by the giving of a new note, executed by the principal and one of the sureties, absolutely releases the surety who does not sign the new note, unless there is some agreement to the contrary, or there are peculiar circumstances affording a reason for holding the former surety liable. [Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. §§ 226-234; Dec. Dig. § 112.*] Appeal from Circuit Court, Clay County; James L. Clark, Special Judge. Action by George A. Knight against Mary G. Kerfoot and another. Judgment for the defendants, and plaintiff appeals. Affirmed. Albert Baker, of Indianapolis, Edward Daniels, of Tipton, R. H. Sullivan and Edward H. Knight, both of Indianapolis, Lamb, Beasley, Douthitt & Crawford, and McNutt, Wallace & Sanders, all of Terre Haute, and A. W. Knight, of Brazil, for appellant. C. G. Scofield, of Brazil, and S. A. Hays, of Green castle, for appellees. 9. PRINCIPAL AND SURETY (§ 200*)-FINDINGS on said date his father-in-law. "Said George OF FACT-INSOLVENCY OF MAKER OF RENEW-Gordon Kerfoot was on said date, and at all AL NOTE. Where the court found that the maker of the note, upon which the plaintiff and defendant were sureties, was insolvent when a renewal note with plaintiff as sole surety was given, and also that the maker had at all times been' insolvent, and that the holder of the notes accepted them, relying on the sureties, the finding of such insolvency does not warrant the inference that the plaintiff paid the former note by the giving of the renewal note, since the insolvency of the principal does not change his rela times since, largely in debt and insolvent. He was at all times since said date, and until he was adjudged a bankrupt on the 25th day of February, 1909, the owner of a stock of hardware of the value of from $5,000 to $10,000, but at no time did he possess property sufficient to pay all his debts. On said date, May 10, 1907, he owed the plaintiff a large sum of money, and was indebted to one . Upon the refusal of said Mary G. or more banks in the sum of about $4,000, | notes. evidenced by various notes on which the de- Kerfoot to become surety for any renewal of said notes, said Knight was informed of such refusal, and to prevent suit on said notes and because of the insolvency of said George Gordon Kerfoot, said Knight alone became surety for said George Gordon Kerfoot on two notes, one to the Citizens' National Bank for $5,000, with said Kerfoot as principal and appellant as surety, dated August 10, 1908, and due in three months in one to the Riddell National Bank for $4,600, with said Kerfoot as principal and appellant as surety, and due in three months in renewal of said note held by said bank. "Said note to said Citizens' National Bank was delivered by said Kerfoot to said bank in payment of said old note, and said old note was by said bank marked paid and delivered to said Kerfoot, and by him delivered to said Knight. Said note to said Riddell National Bank was delivered by said Kerfoot to said bank in payment of said old note, and after consultation with said Knight by an officer of said bank was accepted by said bank, and said old note marked paid and delivered to said Knight, and said Knight has ever since retained possession of both of said notes. Said Kerfoot paid the interest in advance on said new notes." fendant, Mary G. Kerfoot, was his surety." "(2) On said 10th day of May, 1907, said George Gordon Kerfoot, being pressed by his creditors and unable to meet their demands, negotiated two loans of $5,000 each, one from the First National Bank of Brazil, and one from the Riddell National Bank of Brazil, and he executed his two notes, one to each of said banks for $5,000, with the plaintiff, George A. Knight, and the defend-renewal of said note held by said bank, and ant Mary G. Kerfoot as his sureties on each of said notes," which were due in six months. On November 11, 1907, the note at the First National Bank was renewed by executing a new note for $5,000, due in six months, with the same principal and sureties. On May 11, 1908, a loan of $5,000 was negotiated by said George Gordon Kerfoot from the Citizens' National Bank of Brazil, and his note executed therefor, due in 90 days, with the same sureties. Four thousand five hundred dollars of said new loan was applied on the note due the First National Bank, and the remaining $500 due said bank was afterwards paid by George G. Kerfoot. On the 11th day of November, 1907, the note at said Riddell National Bank was renewed by the execution of a new note for $5,000, due in 60 days, with said George Gordon Kerfoot as principal and said George A. Knight and Mary G. Kerfoot as sureties. At the maturity of said last note said George Gordon Kerfoot paid $500 thereon, and gave his note for $4,500 in renewal of the balance of said amount, with the same sureties. On the 10th day of April, 1908, at the maturity of said note for $4,500, said principal was unable to pay the same, or the advance interest on a renewal thereof, and he executed his note to said bank for $4,600, due in four months, with the same sureties, and a part of the new loan of $100 was applied to the payment of interest in advance. "On the 10th day of August, 1908, said George Gordon Kerfoot owed said two banks the sum of $9,600, as evidenced by said two notes executed by himself as principal and said George A. Knight and Mary G. Kerfoot as his sureties thereon. Each of said notes last referred to were negotiable promissory notes" in the usual form, payable at banks in this state. (3) On the 10th day of August, 1908, said George Gordon Kerfoot owned said stock of hardware of the value aforesaid, but had no available funds to apply on said notes, and he thereupon made an effort to again renew said notes, and requested the said Mary G. Kerfoot to again become surety with said Knight on renewal notes, and she refused to sign or become surety on any such notes or for any sum or purpose whatever. At that time said Mary G. Kerfoot was possessed of sufficient property, including that conveyed to her codefendant, John B. Kerfoot, to ena "(4) At the time of the making and acceptance of each and all of said notes executed by said George Gordon Kerfoot as principal and said George A. Knight and Mary G. Kerfoot as sureties, and by said George Gordon Kerfoot as principal and said George A. Knight as surety, the officers of said banks accepting said notes understood that said George Gordon Kerfoot was insolvent, and they believed that the sureties or surety on said notes would eventually have said notes to pay, and they accepted said notes because of the financial standing of the sureties or surety. At the time of the execution of said new notes by said George Gordon Kerfoot and said Knight on the 10th day of August, 1908, and the using of said notes in renewal of said old notes, said Knight and said Mary G. Kerfoot each knew that said George Gordon Kerfoot was insolvent and unable to pay said notes, and that at that time he was unable to pay any part thereof, and said Knight understood and believed that he would have said new notes to pay in full as surety, and he at that time intended to hold said Mary G. Kerfoot responsible to him as cosurety in contribution on said old notes, so taken up by said new notes executed by said George Gordon Kerfoot and said Knight alone. Said Mary G. Kerfoot did not advise or consent to the making of said new notes by said George Gordon Kerfoot and said Knight, nor did she make any objection thereto. "(5) On the maturity of said last notes said Kerfoot as principal and said Knight as surety again renewed said notes for a period note to said Riddell National Bank being for $4,700, and including a new loan of $100. Said Kerfoot with said new loan of $100 and other funds paid the interest in advance to maturity on said new notes. When said las renewal notes of said Kerfoot and Knight matured, said Knight paid each of them by executing his individual notes, which he in a short time paid in full in cash; the said Kerfoot paying no part thereof. "(6) On the 25th day of February, 1909, said George G. Kerfoot was adjudged a volantary bankrupt. * * When said Knight paid the last notes executed by said Kerfoot as principal and Knight as surety, he took an assignment of each of said notes from the banks holding the same, and he subsequently filed said notes in said bankruptcy proceedings as claims against said Kerfoot, and received as his distributive share on said $5,000 note the sum of $277.92, and on said $4,700 note the sum of $261.24.” (7) The court also found, in substance, that the property conveyed to John G. Kerfoot by Mary G. Kerfoot was liable to levy and sale to satisfy any judgment obtained against her in this suit by appellant. On the foregoing finding of facts the court stated its conclusions of law as follows: the notes signed by her was clearly that of a surety, and not that of a principal. Lackey v. Boruff, 152 Ind. 371-376, 53 N. E. 412; McCoy v. Barns, 136 Ind. 378-381, 36 N. E. 134; Johnson v. Jouchert, 124 Ind. 105-108, 24 N. E. 580, 8 L. R. A. 795; Sefton v. Hargett, 113 Ind. 592-595, 15 N. E. 513. [1] It is contended by appellant that the court had not found as an ultimate fact that G. G. Kerfoot, the principal, paid the notes maturing in August, 1908, and that the finding, considered as a whole, shows that appellant paid the notes, because it discloses the insolvency of the alleged principal. In Indiana the giving of a promissory note governed by the law merchant, for a pre-existing indebtedness, is prima facie evidence of payment, and is conclusive, in the absence of evidence showing that such was not the intention of the parties. [2] Anything is payment which the creditor accepts as payment, but where the question is in issue, parol evidence is admissible to determine whether a note executed for a preexisting debt was or was not accepted as payment of the existing debt. Weston v. Wiley, 78 Ind. 54-56; First Nat. Bank v. Nugen, 99 Ind. 160-164; Sutton v. Baldwin, 146 Ind. 361-364, 45 N. E. 518; Bradway v. "First. That the payment of the notes of Groenendyke, 153 Ind. 508-510, 55 N. E. George Gordon Kerfoot as principal and 434. Here the controverted question is not George A. Knight and Mary G. Kerfoot as the fact that payment of the notes maturing sureties, by the execution of the new notes in August, 1908, by the notes executed by G. with said George Gordon Kerfoot as princi-G. Kerfoot and appellant, but whether such pal and said George A. Knight as sole surety, payment was made by said Kerfoot or by was not a payment of said notes by said Knight. "Second. That said Knight is not entitled to recover judgment against said Mary G. Kerfoot in contribution as his cosurety on said notes so paid by the notes of said George Gordon Kerfoot and said Knight." While other errors are presented and discussed, the real question is that of appellant's right to contribution from appellee for the money paid by him as surety for George G. Kerfoot. Appellant takes this view in his brief, and waives all other questions by saying: "The gist of this whole case, and the sole issue tendered by all the pleadings, lies in the answer to the single question, Who paid the notes which matured and were taken up in August, 1908?" This proposition goes to the heart of the question of contribution, and is not material to any other question. In view of this statement, which is borne out by the record, we are not called on to determine any question relating to appellant's right of indemnity as the alleged surety of appellee Mary G. Kerfoot, and if such question were to be decided, the payment of these particular notes at the time named would not be material to the decision of that question. The record clearly discloses that if appellant is entitled to recover at all, it is on the issue of contribution, and not on that of appellant. [3, 4] The court should find the ultimate facts in issue, and not the mere evidentiary facts. While this is a rule of general application, in ascribing meaning and effect to a special finding it is to be read as a whole, and the intendments are in its favor rather than against it. If by considering one part in connection with other parts relative to the same matter, the finding can be said to be sufficient, it will be upheld. [5] Where subsidiary and evidentiary facts are found by the court, and they are of such a character that the ultimate fact clearly and necessarily arises therefrom, the court may from such facts, infer the ultimate fact, and consider it as a part of the finding. Behler v. Ackley, 173 Ind. 173-179, 89 N. E. 877; Mount v. Board, 168 Ind. 661-666, 80 N. E. 629, 14 L. R. A. (N. S.) 483; C., C., C. & I. Ry. Co. v. Closser, 126 Ind. 348-367, 26 N. E. 159, 9 L. R. A. 754, 22 Am. St. Rep. 593; Kedey v. Petty, 153 Ind. 179-185, 54 N. E. 798; Taylor v. Canaday, 155 Ind. 671675, 57 N. E. 524, 59 N. E. 20; Town of New Castle v. Grubbs, 171 Ind. 482-489, 86 N. E. 757. [6] In this case the court has found that at the time of the execution of all the notes described in the finding said George Gordon Kerfoot was insolvent, and that all the notes terial averments of his complaint, and a fact essential to his right of contribution. [8] It is contended that the first conclusion of law is in the nature of the finding of an ultimate fact, and not a conclusion of law. It is well settled that the statement of a fact in the conclusions of law does not aid the finding, and cannot be considered; but the question is immaterial here, since the second conclusion of law is decisive of the whole issue, and the failure to find the fact of payment, by appellant in August, 1908, of the notes he alleges he then paid, shows that the court did not err in the second conclusion of law. financial standing of the sureties; that all | secure a finding establishing one of the mathe parties to said transactions knew of said insolvency; that on August 10, 1908, said Kerfoot owned a stock of hardware of the value of from $5,000 to $10,000, but had no available funds to apply on said notes; that in August, 1908, said Mary G. Kerfoot refused to sign or become surety on any notes for the renewal of the notes in bank, or for any purpose whatever, and this fact was known to appellant; that said G. G. Kerfoot as principal and appellant as surety executed said notes of date August 10, 1908, and said Kerfoot delivered the same to the banks in payment of the notes on which Mary G. Kerfoot and appellant were both sureties; that the banks thereupon stamped the old notes paid and surrendered them. The finding is thus clearly sufficient to show the payment and satisfaction of the notes on which Mary G. Kerfoot was surety. [9] It is also contended by appellant that the court's finding of the insolvency of G. G. Kerfoot, and that appellant did ultimately pay the debts due said banks, compels the inference of the ultimate fact that he paid the notes due in August, 1908, and is entitled to contribution. This view of the find by the court tend strongly to warrant the inference of the ultimate fact that the notes due in August, 1908, were paid by the principal, G. G. Kerfoot, by notes on which he Un have not inferred such fact. The facts found Appellant does not claim that she was thereafter liable on the notes so paid, but that she is in equity liable on the implied ob-ing of facts is erroneous. The facts found ligation that one surety shall contribute to another, who has paid the debt of their principal, his proportionate part of the amount so paid. The theory is correct and appellant's right to recover depends upon the facts. was principal and appellant surety, but we [7] Appellant asserts that the conclusions of law are erroneous, because the court has not found as an ultimate fact that G. G. Kerfoot paid the notes on which his mother was surety by delivering to the banks the notes signed only by him and the appellant. Conceding, without deciding, that the finding is insufficient to show such payment, it does not follow that the court erred in its conclusion that appellant is not entitled to contribution from Mary G. Kerfoot as his cosurety. The complaint presents the issue of payment of the notes maturing in August, 1908, for it proceeds on the theory that appellant paid the notes, and that the name of G. G. Kerfoot on the new notes did not, in any way, change or affect such payment. The facts are set up in detail to support this theory, and in addition thereto it is specifically alleged that "plaintiff was compelled to and did pay in full each of said notes then due, by executing as maker and principal each of said new notes; ** that each of said payees thereupon accepted its said new note, dated August 10, 1908, and applied the same in full payment, by this plaintiff alone, of the aforesaid respective notes." The fact of payment by appellant was therefore a material averment of the complaint, essential to appellant's recovery. The failure of the court to find a material fact is equivalent to finding such fact against the party having the burden of proving the same. The court has not found the ultimate fact of payment by appellant, nor can we say, under the most liberal rule applicable to special findings, that the fact of such payment is a necessary inference from the facts [10] The whole contention of appellant is that the question is one of equity, but accepting this view, appellant must still prove the allegations of his complaint. Contribution is an equitable doctrine, and, as between sureties, is bottomed on the fact that one surety has paid the debt for which he and his cosurety were liable. [11] While the decision of this case does not depend upon the proposition, there is ample authority for holding that the payment of a promissory note by the giving of a new note executed by the principal and one of the sureties on the old note abso |