Garner v. Thomas

Respondent has filed a petition for a rehearing. Two points are urged wherein it is claimed the court was in error in its previous opinion, 94 Utah 287, 75 P.2d 168. First. That the court failed to consider the right of plaintiff to recover against Clara L. Thomas on the debt even though the note be held void as to her. It is sufficient to say that the only liability of Clara L. Thomas was on the note under both the pleadings and the evidence. Had she not signed the note, there would have existed no claim against her. She received nothing, was not a contracting party except by signing the note with George S. Thomas, and could not have been held had the suit been brought in debt on the contract of sale as could Mr. Thomas. Since her liability exists only because she signed the note, when the note is voided, her liability ceases.

Second. Respondent complains of a statement in the opinion which is an apparent criticism by the court directed to counsel for appellant. The statement is: "It appears from the brief that counsel for defendants took the view that since Garner was deceased, Mr. Thomas would not be permitted to testify in regard to the matter. In this counsel was in error because the executorhaving opened up this alleged conversation and agreement, Mr.Thomas could testify as to that matter and explain or deny thesame." (Italics added.) It is argued that, since the alleged conversation was brought out in cross-examination of the executor, it was not opened up for rebuttal. As far as this case is concerned, it does not matter, because no attempt was made to rebut it. It is therefore unnecessary to decide whether or not such situation opens up the alleged conversation for rebuttal, and so we do not decide that matter. The statement from the original opinion, quoted above, is therefore stricken and deleted from the opinion rendered, and as so corrected the opinion stands.

The petition for a rehearing is denied.

FOLLAND, C.J., and HANSON and MOFFAT, JJ., concur.