Lytle

The action was based upon the following contract entered into between plaintiff’s assignor and defendant:

The answer does not deny the execution of the contract, but simply its legal effect. It does, however, deny the assignment. The court found, after admitting oral evidence of the intention of the parties, that by the terms of the contract the defendant promised only to pay for the Bansome mixers, and that the contract price thereof having been paid before suit, no sum was due from defendant, and rendered judgment against plaintiff for costs. A new trial was denied, and from the judgment and the order denying a new trial plaintiff appeals upon a statement of the case.

We are of opinion that the court erred in its construction of the contract in the admission of oral evidence of intent, and in its finding that thereby nothing was guaranteed except payment for the mixers. There is certainly no ambiguity in relation to the promise to pay the indebtedness existing between the parties at the date of the contract. The court finds that the indebtedness existing between plaintiff’s assignor and the Weber-Duller Company at such date was thirty-nine dol lars. The imcontradicted evidence…

I dissent from the order denying a rehearing. I think the words written in the printed form of guaranty before it was executed by Mr. Allison (“to cover shipments 2 Ransome mixers to Mexican Petroleum Co.” etc.) ought to be allowed some effect, and controlling effect—in construing his obligation—especially when it appears that it was given to secure credit for the shipment to which those words refer, and for no other consideration except the merely nominal consideration of one dollar.

The full price of the mixers having been paid, I do not think the defendant is liable for the general indebtedness of the Weber-Duller Co. to plaintiff’s assignor.