Van Horne ex rel. Delamater & Co. v. Dick

Opinion bv

Mb. Justice Stebbett,

It cannot be doubted that the uncontradicted evidence in ehief of the beneficial plaintiffs made oüt a prima facie case against the defendant as one of the sureties of the Meadville Railway Company. Defendant’s contention was that he was released from that liability by an agreement to give further time to the company for the payment of its debt to Thomas Van Horne, the legal plaintiff, and that the latter assented to and carried out said agreement.

The agreement was evidenced by the obligation, dated October 31, 1883, executed by H. L. Richmond and G. W. Delamater, wherein they guaranteed to said Yan Horne the payment in full of his judgment against said Railway Company, debt, interest and costs (1706.53), “ within thirty days after the sale of the property, rights and franchises of the above named defendant Railway Company shall have taken place under and by virtue of the mortgage,” etc. ■

There was no dispute as to the execution of this paper, nor that it was agreed that Van Horne would accept it, and, in consideration thereof, would wait until thirty days after the road should be sold; nor was there any question that Yan Horne’s writ was stayed, the agreed time actually given, and that, in pursuance of the obligation, the money was paid to Yan Horne by G. W. Delamater for Delamater & Co., to whom the judgment was assigned. The undisputed evidence shows conclusively that there was an executed agreement to give time to the principal debtor, and by necessary implication the verdict establishes the fact that this was done without the consent of defendant, one of the sureties of the Railway Company, defendant in the judgment. -In affirming plaintiff’s second point, the learned judge expressly instructed the jury that the contract to extend time would not be a defence, if Mr. Dick the present defendant assented thereto.

An examination of the record satisfies us that the instructions recited in the 3d, to 6th, specifications inclusive, were war ranted by the evidence.

The first specification is not according to rule, in that it does not show any answer to the question objected to. But, assuming that an affirmative answer was given, the error, if any, in permitting the witness to testify as to the existence of the paper, was cured by its subsequent production and admission in evidence.

The paper referred to was the corner stone of the defence. There was no question as to its execution, nor as to the fact that it was subsequently acted upon by the plaintiff in the judgment to which it relates. It was therefore properly admitted in evidence.

We find nothing in either of the specifications of error that requires a reversal of the judgment.

Judgment affirmed.