HOUGH, Circuit Judge (after stating the facts as above).
The master found as a fact that Municipal Railway Company fully accepted the order or orders given by Connors in favor of Bass, and it also appears from the record that the Connors Company consented to the discontinuance of Bass' action as against itself.
It is, of course, true that the present appellees, upon paying the judgment recovered by Bass against them, became subrogated to whatever contractual rights plaintiff Bass had against their principal, Connors.
We are of opinion that Bass had such rights as against Connors' interest in payments normally to be made to Connors Company by the Municipal Railway Company Connors could not retract or invalidate the order which he had given, and which had been accepted by the Municipal Railway, because there was a plain consideration for it, in that Bass had waived or forborne the right of filing a lien against this contract. See Kemp v. National Bank, 109 F. 48, 48 C.C.A. 213, for a review of "consideration," which includes either any profit or benefit accruing to one party or some forebearance or detriment given or suffered by the other.
Furthermore, Connors, with its sureties, was sued by Bass, and the only possible defense to that action was in the hands of Connors, and when trial was finally had Connors not only had notice of the nature of the demand, but furnished the evidence used in the endeavor to defeat Bass' claim. By such a judgment so obtained Connors is concluded; it was no longer possible to retry in any forum the merits of the matters in controversy in that suit. Chicago v. Robbins, 2 Black, 418, 17 L. Ed. 298; Oceanic, etc., Co. v. Campania Transatlantica, 144 N.Y. 663, 30 N.E. 360.
Order affirmed, with costs.