Chapman

This is an appeal from a final judgment in favor of plaintiffs, and from an order overruling a motion for a new trial.

On the twenty-fourth day of May, 1888, J. G. "Wofford, the assignor of the respondents, S. G. Boyd, E. W. Chapman, the appellant, and E. H. Fleming, entered into a written agreement of arbitration of certain differences existing between them, growing out of and relating to certain commissions claimed by Wofford from Chapman and Fleming, for the sale of fruit and ornamental trees and cactus hedge plants; for salary claimed to be due him; also, for an amount claimed to be due him and Boyd from all the others on account of moneys, notes, etc., received by such others from the sale of cactus hedge plants in Merced County, where said Wofford and Boyd claimed an interest in the sales.

The name of one J. H. Hamilton was originally written in the body of the agreement of arbitration as a party thereto, but was erased therefrom, as appears by a note at the bottom of the instrument, which note is as follows:—■

Dixon was the attorney of Chapman, and Geis and Goucher were attorneys of Wofford.'

On the day of the execution of the agreement to arbitrate, viz., May 28, 1888,…

— I dissent from the order of the court denying a rehearing of this cause, not because any of the propositions stated in the opinion of the Department is incorrectly decided, but because the principal assignment of error presented and argued in the brief of appellant is entirely ignored.

The action is upon the undertaking of defendant guaranteeing the payment of the judgment of Wofford.against Fleming. The complaint shows an assignment of the undertaking of the surety, but does not show any assignment of the judgment, and the contention of the appellant is that there can be no recovery against the surety by one party while the obligation .of his principal is held by another. This proposition is seriously urged, and is supported by authority. It does not answer itself and is not trivial. I do not think the case should be disposed of without a reference to it, or that the petition for a rehearing, based upon the omission of the court to notice it, should be denied.