Lean

This isan appeal from an order granting defendants’ motion for a new trial, after judgment for plaintiff in an action on an agreement of guaranty had been rendered and entered.

On the twenty-fourth day of April, 1908, the defendant Lottie P. Geagan made, executed, and delivered to the Hitchcock-Hill Company, a corporation, a guaranty in the words and figures following:

On the fifth day of May, 1909, and at various dates just prior thereto, the Hitchcock-Hill Company, on the faith of the guaranty, had sold and delivered to W. B. Provan merchandise in the sum of $1,102.39, on account of which $94.69 had been paid, leaving a balance due of $1,007.70. M. Y. Geagan is the husband of Lottie P. Geagan, and for that reason is made a party defendant. It also appears from the complaint that prior to the commencement of this suit Hitchcock-Hill Company assigned its claim on the guaranty to the plaintiff. The action is for the amount of the guaranty, i. e., one thousand dollars.

The only plausible theory and in fact the conceded theory— upon which the trial court acted in granting the motion for a new trial was that plaintiff’s assignor, in allowing Provan a credit in excess of one…