No doubt, under the agreement, it was in the defendant’s option to retain the notes and apply them on Stein’s debt. Its refusal to return them on demand was. an exercise of that option, which was conclusive upon it. Under the agreement upon which the notes had been delivered to it by Stein, it operated to vest the title to the notes-in it, and, of course, to defeat Stein’s title. It is unimportant that Stein did not indorse the notes. Title would pass-without it, and, being for the defendant’s benefit, it might waive it. Of course, under these circumstances, Stein could give to the plaintiff no better title to the notes than he himself had. The demurrer should have been sustained.
By the Court.— The order of the superior court of Milwaukee county is reversed, and the cause remanded with, direction to enter an order sustaining the demurrer.