Casson v. Rasback

Phillips, J.

The only evidence before the jury fails to show an extension of time by the payee to the principal and if the testimony of Besant be accepted as true without reference to the testimony of the plaintiff and it be admitted that the plaintiff induced him not to give a notice in writing to proceed to collect the note and thereby estopped the plaintiff as to Besant, we fail to see how that fact could be of advantage to the other defendants. The instruction by the court on this evidence—“ If defendant was trying to get the plaintiff to proceed against the principal at a time when said principal might have been compelled to pay the same, and the defendant on account of said statement of plaintiff desisted from said efforts you should find for defendant,” was erroneous. There was no evidence to show that Besant was acting for his co-defendants in any way or that they desired the note collected. Even if it be admitted that an estoppel existed as to Besant, there is no evidence on which to base an estoppel as to the other defendants. "We deem it unnecessary to decide the question as to whether an estoppel existed in this case as it must be submitted to another jury. For the error in instructions to the jury the judgment must be reversed and the cause remanded.

Reversed and remanded.