THAYER, Circuit Judge.
A rehearing was granted in this case at the December term, 1895, and the questions involved have been reargued. In the opinion originally filed (16 C. C. A. 410, 69 Fed. 782) this court held that inasmuch as the record failed to show that the case was referred to a referee for trial, in pursuance of a written stipulation of the parties waiving a jury, the only question open to review, according to the federal practice in law cases, was whether the complaint was sufficient to sustain the judgment. This view was clearly enunciated in Boogher v. Insurance Co., 103 U. S. 90, 95, 96, where the right to review the case — it having been tried by a referee — was sustained solely on the ground that the order of reference had been made in obedience to the written consent of the parties. Our attention was called, on the first argument of the case, to the decision in Paine v. Railroad Co., 118 U. S. 152, 6 Sup. Ct. 1019; but as the record in that case disclosed that the case had been sent to a referee for trial, in pursuance of a written stipulation signed and filed by counsel, we did not consider it probable that the supreme court intended to depart in any wise from the views previously expressed in Boogher v. Insurance Co., supra, and in the subsequent case of Mortgage Co. v. Hughes, 124 U. S. 157, 8 Sup. Ct. 377. A more careful examination of the decision in Paine v. Railroad Co., supra, and the later decisions in Roberts v. Benjamin, 124 U. S. 64, 8 Sup. Ct. 393; Andes v. Slauson, 130 U. S. 435, 9 Sup. Ct. 573; and Shipman v. Mining Co., 158 U. S. 356, 15 Sup. Ct. 886, — has satisfied us that this latter view was probably erroneous. The present rule that- appears to be followed by the supreme court is this: That no questions arising upon the record will in any event be reviewed by that court, if the case was tried at nisi prius before the court on an [475] oral stipulation waiving a jury, except the question whether the complaint is adequate to support the judgment, whereas, if a case is sent to a referee for trial, in obedience to an oral stipulation of counsel to that effect, and the referee makes a special finding of fact, it will consider whether the facts, as found and reported by the referee, warrant the judgment.
Accepting this as the correct view, it becomes necessary to consider the question which was left undetermined in our former opinion, —whether the judgment of the circuit court was right, upon the facts as they are detailed in the' referee’s report.* This question, we think, should be answered in the affirmative. The action by the Sioux National Bank w*as founded upon a printed form of voucher, which appears to have been in use by the Cudahy Packing ■Company for the purpose of facilitating the transaction of the business in which it was engaged, — of purchasing hogs and live stock. The voucher represented on its face that the packing company was indebted to the Union Loan & Trust Company, on account of purchases of live stock that had been made on April 22,1893, to the amount of $13,509.52. The correctness of the voucher was certified to by J. W. Wallace, as buyer, and by Charles E. Morris, as cashier, for the packing company. Across the face of the voucher was printed this statement: “When approved, dated, and signed, this voucher becomes a draft on the Cudahy Packing Company of South Omaha, Neb., payable through the Union Stock Yards National Bank of South Omaha, or the Bankers’ National Bank of Chicago, for $13,509.-52.” The voucher bore the following additional indorsement: “Approved for payment. Maurice J. Barron, Superintendent;” also, the following: “Registered April 24, 1893. Charles E. Morris, Sioux City.”
The referee found and reported, among other things:
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THAYER, Circuit Judge.
A rehearing was granted in this case at the December term, 1895, and the questions involved have been reargued. In the opinion originally filed (16 C. C. A. 410, 69 Fed. 782) this court held that inasmuch as the record failed to show that the case was referred to a referee for trial, in pursuance of a written stipulation of the parties waiving a jury, the only question open to review, according to the federal practice in law cases, was whether the complaint was sufficient to sustain the judgment. This view was clearly enunciated in Boogher v. Insurance Co., 103 U. S. 90, 95, 96, where the right to review the case — it having been tried by a referee — was sustained solely on the ground that the order of reference had been made in obedience to the written consent of the parties. Our attention was called, on the first argument of the case, to the decision in Paine v. Railroad Co., 118 U. S. 152, 6 Sup. Ct. 1019; but as the record in that case disclosed that the case had been sent to a referee for trial, in pursuance of a written stipulation signed and filed by counsel, we did not consider it probable that the supreme court intended to depart in any wise from the views previously expressed in Boogher v. Insurance Co., supra, and in the subsequent case of Mortgage Co. v. Hughes, 124 U. S. 157, 8 Sup. Ct. 377. A more careful examination of the decision in Paine v. Railroad Co., supra, and the later decisions in Roberts v. Benjamin, 124 U. S. 64, 8 Sup. Ct. 393; Andes v. Slauson, 130 U. S. 435, 9 Sup. Ct. 573; and Shipman v. Mining Co., 158 U. S. 356, 15 Sup. Ct. 886, — has satisfied us that this latter view was probably erroneous. The present rule that- appears to be followed by the supreme court is this: That no questions arising upon the record will in any event be reviewed by that court, if the case was tried at nisi prius before the court on an [475] oral stipulation waiving a jury, except the question whether the complaint is adequate to support the judgment, whereas, if a case is sent to a referee for trial, in obedience to an oral stipulation of counsel to that effect, and the referee makes a special finding of fact, it will consider whether the facts, as found and reported by the referee, warrant the judgment.
Accepting this as the correct view, it becomes necessary to consider the question which was left undetermined in our former opinion, —whether the judgment of the circuit court was right, upon the facts as they are detailed in the' referee’s report.* This question, we think, should be answered in the affirmative. The action by the Sioux National Bank w*as founded upon a printed form of voucher, which appears to have been in use by the Cudahy Packing ■Company for the purpose of facilitating the transaction of the business in which it was engaged, — of purchasing hogs and live stock. The voucher represented on its face that the packing company was indebted to the Union Loan & Trust Company, on account of purchases of live stock that had been made on April 22,1893, to the amount of $13,509.52. The correctness of the voucher was certified to by J. W. Wallace, as buyer, and by Charles E. Morris, as cashier, for the packing company. Across the face of the voucher was printed this statement: “When approved, dated, and signed, this voucher becomes a draft on the Cudahy Packing Company of South Omaha, Neb., payable through the Union Stock Yards National Bank of South Omaha, or the Bankers’ National Bank of Chicago, for $13,509.-52.” The voucher bore the following additional indorsement: “Approved for payment. Maurice J. Barron, Superintendent;” also, the following: “Registered April 24, 1893. Charles E. Morris, Sioux City.”
The referee found and reported, among other things:
•‘That on or about the 1st of December, 1802, at the time when the defendant (packing company) made arrangements with the Union Doan & Trust Company to cash its pig tickets, it was agreed between the defendant and the said Union Loan & Trust Company that the defendant would issue to said Union Loan & Trust Company its daily vouchers to an amount equal to the pig tickets issued each day, said vouchers to be in form like the one ¡-sued on herein; and, to compensate the Union Loan & Trust Company for the use of its money advanced for pig tickets for the time necessary to collect such daily vouchers, the defendant agreed to keep with sa-id Union Loan & Trust Company a deposit, which deposit * * * was known as the ‘Current Account,’ which account was not to be paid upon the check of any of its (the packing company’s) local officers or agents at Sioux City, but only on the check of its officers at its general offices at Chicago or South Omaha; said current account to be continued as long as the Union Loan & Trust Company continued to pay the defendant’s pig tickets. That the general or current account could under no circumstances he used in the payment of pig tickets without the con,sent of the general officers of the company at Omaha or Chicago, and no such consent had been given when these transactions occurred. * * * That on the morning of the 22d day of April, 1893, the defendant’ had credit with said Union Loan & ’Trust Company on its current account to the amount of $14,000, which amount remained to its credit, and still so remains, unless the same be applied to the payment of the voucher sued on. * * * That on Monday morning, the 21th day of April, 1893, the Union Loan & Trust Company was in a failing and insolvent condition, without any available funds on hand, and wholly unable to pay the pig tickets [476] that might be presented on that day, and without means to pay the same, and in contemplation of a general assignment for the benefit of creditors. It took the draft or voucher which had been issued on * * * the 22d day of April, 1893, to the Sioux National Bank, and asked the bank to purchase it and give the trust company credit for it in its account with the bank, and thereby enable the trust company to pay the outstanding pig tickets of the defendant packing company which would thereafter be presented; and the bank bought the draft and voucher, and gave the trust company credit for it, to enable the trust company to pay the pig tickets of the packing company which might be presented thereafter, and it was indorsed to the bank in the ordinary course of business. That the purchase of said draft or voucher by the bank was in good faith, for full value, and without notice of the relations or dealings,' or the' state of account, between the packing company a,^d the trust company, and without any actual knowledge or notice that the trust company was at the time indebted to the packing company on another account, and relying upon the recitals therein contained. That drafts or vouchers of similar form, used by the Cudahy Packing Company and other companies, passed current and circulated among the banks of Sioux City as drafts or bills of exchange, and are taken, bought, and sold and circulated as such, but it is not established by the evidence herein as to whether or not such drafts or vouchers contained words of negotiability. That under the usages and customs of bankers, merchants, and commercial men generally in Sioux City and vicinity, the words ‘draft’ and ‘bill of exchange’ are synonymous terms.”
The referee further found and reported, in substance, that after purchasing the aforesaid voucher from the Union Loan & Trust Company, and placing the proceeds to the credit of the trust company, the bank paid'the checks of the trust company covering pig tickets that had been theretofore issued by the packing company, to the amount of $11,512.62. It thus appears that the proceeds of the voucher, to the amount last stated, were used to retire outstanding pig tickets for which the packing company was clearly liable, and which it would have been compelled to pay but for the arrangement entered into between the bank and the trust company, at the latter’s instance, whereby the credit of the packing company was protected. The trial court rendered a judgment in favor of the plaintiff bank for the sum thus expended by it in paying pig tickets, together with accrued interest.
It is claimed by the packing company that, under sections 3260 and 3751 of McClain’s Iowa Code, it was entitled to offset the amount of its aforesaid special deposit with the Union Loan & Trust Company against the amount due to the plaintiff bank on the aforesaid voucher, inasmuch as the voucher does not contain words of negotiability, and for that reason is not a draft or bill of exchange, within the meaning of the law merchant. It is needless to say that we have not been able to shut our eyes to the manifest injustice of permitting the packing company, by the contention aforesaid, to cast on the bank the loss that the former has incurred, or seems liable to incur, by reason of its peculiar mode of dealing with the trust company. Thé bank, as it seems, cashed the voucher to enable the trust company to take up certain pig tickets which otherwise would have been dishonored, at least for the time being. It did so, as the referee found, in good faith, and without any knowledge that the trust company was indebted to the packing company for the amount of the special deposit. Under these circumstances, it would be a reproach [477] to ihe law if an act which was intended to be beneficial to the packing company should be made the means of compelling' the bank io refund the amount of the packing company’s special deposit with the trust company. We are of opinion that the doctrine of estoppel may properly be invoked to prevent sucli a result. The packing company saw fit to indorse on the voucher a statement to the effect that when “approved, dated, and signed,” it should become a draft on the Cudahy Packing Company. This was done, doubtless, to give the voucher additional credit with the commercial world; in other words, to enable it to be circulated from hand to hand, not as an ordinary chose in action, but as a bill of exchange which had been duly accepted by the packing company. The term “dra fl ” is commonly employed as a synonym for the words “bill of exchange” or “check,” and it was undoubtedly so used on the present occasion. The pa eking company, in effect, represented to the world that the voucher, when “approved, dated, and signed,” would be treated by it in all respects as an accepted bill. If this was not the meaning of ihe statement printed across the face of the voucher, then we are at a loss to understand what meaning should be imputed to the statement, or what purpose it was intended io subserve. The bank purchased the voucher on the faith of this representation, believing', no doubt, that it would be treated by the packing company as an acceptance, and that it would be subject to no offset or equities of defense that existed as between the trust company and the packing company. In view of these considerations, we think that the conclusion is fully warranted that the packing company is estopped by its own conduct and representations from assorting that the voucher is a mere honnegotiable chose in action, and that it is subject to set-offs in the hands of an innocent purchaser for value. Having represented to the world, for its own benefit and advantage, that it would treat the voucher, when duly authenticated by .its officers and agents, as a negotiable draft or bill, and having induced an innocent party to purchase it in reliance on such representations, it must be held bound by the statements so made. It follows, therefore, that upon the slate of facts found and reported by the referee, the judgment of the circuit court was for the right party, and it is hereby affirmed.