Appeal from a judgment of the Superior Court of Mendocino County and from an order denying a new trial.

The action was upon a joint and several promissory note made by the defendants Beer, Clifton, and Weil, dated February 24,1887, for the sum of twelve hundred dollars, with interest at the rate of ten per cent per annum. The defendants Clifton and Weil made default, and the defendant Jennie Beer answered, admitting the execution and nonpayment of the note, and pleading that she was engaged in general merchandise, and was indebted to the plaintiff on the note sued upon and to other merchants in a large sum; that she was in failing circumstances, and unable to pay her debts as they became due; that the defendants Clifton and Weil proposed to her creditors, including the plaintiff, that they would buy her stock of merchandise and debts for a specified sum, and would assume and pay all of her indebtedness, including the note of plaintiff; that all her creditors accepted the offer, and released and discharged the said Jennie Beer of and from the said indebtedness. The court found that the proposition of the defendants Clifton and Weil was not made to the plaintiff nor accepted by him, and that they did not agree that they would pay the note sued upon, and the plaintiff did not agree to release the defendant Jennie Beer from that note, and that 'Clifton and Weil signed the note as the sureties of the defendant Beer. The finding of the court was assailed by the appellant as contrary to the evidence. The evidence, upon the part of plaintiff, showed that Weil and Clifton attended a meeting of the creditors of Mrs. Beer at the rooms of the San Francisco Board of Trade, and it was there agreed that they would assume the debts of Mrs. Beer. The plaintiff was not present at that meeting of creditors, and when seen afterwards said he would accept Weil and Clifton for his book account, but would see Mrs. Beer in regard to the note, and the plaintiff testified that he did not release Mrs. Beer from the note, or accept Weil or Clifton alone for it. Upon the other hand, Mrs. Beer testified that Weil and Clifton agreed to pay the twelve hundred dollars, and that White said the boys were good for the note, and that White agreed to release her. The evidence showed that all the business and assets of Mrs. Beer were turned over to Weil and Clifton in consideration of their assuming to pay all of her indebtedness.