Theo. Hamm Brewing Co. v. Huber

WHITING, P. J.

Action to recover amount due on promissory notes executed by all defendants. Trial to court without jury. Findings, conclusions, and judgment for plaintiff. From- the judgment and an order refusing a new trial, the defendant Jeli appealed.

[1] Appellant does not question the sufficiency of the findings to support the judgment. He does question the sufficiency of the’ evidence to support certain of the findings, hut he has not made it to affirmatively appear that the statement in his brief “contains a statement of all the material evidence received upon the trial,” as required by rule 6 ( 140 N. W. viii ) of this court and hy chapter 172, Laws 1913. There is thereforé-left for our consideration only such assignments as question the correctness of the trial court’s rulings on admission of evidence. Hepner v. Wheatley, 33 S. D. 34, 144 N. W. 923 ; Denton v. Butler, 37 S. D. 444, 158 N. W. 1017 .

[2] Appellant and defendant John <C. Huber were partners, and the notes in question were given in' consideration of money *156 loaned the partnership. After the notes were given Hu'ber bought out appellant’s interest in, and assumed1 the obligations of, the partnership. Appellant introduced evidence tending to prove that, at his request, an agent of plaintiff undertook to induce plaintiff to release appellant from further liability on the note. In rebuttal the court received the testimony of this agent as well as that of a managing officer of plaintiff as to what was said by the officers of the company when the agent presented appellant’s request to be released. It is the admission of this conversation between plaintiff’s officers and their agent that appellant assigns as error. The evidence was clearly competent. This agent, in. communicating appellant’s request to plaintiff, was acting for appellant, and not for the company.

[3] The partnership secured the notes by chattel mortgage. Plaintiff 'called its agent to prove the execution of the notes and the consideration therefor as well as the amount that had been paid thereon. Appellant then asked' this witness whether there had been anything done1 toward foreclosure or collection of the chattel mortgage that had been given to secure the notes, and whether plaintiff still held the mortgage. These questions were objected to and objections sustained. One of the appellant’s defenses seemed to be that, by Huber’s assumption of the indebtedness evidenced -by the notes and plaintiff’s knowledge of such assumption, even though plaintiff did not release appellant, appellant became, as to these notes, but a surety; and that, if plaintiff negligently allowed the. security to become wasted, appellant would be released at least to the extent of the value of wasted security. It is upon this legal contention that appellant bases his claim of error in the court’s ruling ’excluding the answers sought. The rulings were correct. Even though appellant is right in the contention that, under the facts, he became a mere surety, it is enough to note that none of such facts 'had then been disclosed by the evidence.

The judgment and order appealed from' are affirmed.