The action is upon a bond executed by all of the defendants to the plaintiff, to indemnify the latter with respect to certain debts of a copartnership of which he had been a member. Verdict was rendered in favor of the defendant Charles F. Anderson, but against the other defendants. This determination in favor of Charles F. Anderson rests alone upon the fact that, when he executed the bond he was orally assured by the plaintiff that it was. a mere matter of form, — only an accommodation, — and that no- liability would attach. The evidence of this oral assurance or agreement was received against the plaintiff’s objection. Neither fraud nor mistake in respect to the execution of the bond are alleged in the answer, or shown by the evidence. This defence was insufficient. The bond expressed a legal obligation, which could not be affected by a contemporaneous oral agreement that no such obligation should be created. The case was clearly within the general rule which forbids the introduction of evidence of contemporaneous oral agreements to contradict the terms of an agreement or obligation which the parties have put in writing. The evidence should not have been received.
The order refusing a new trial as to the defendant Charles F. Anderson is reversed, and a new trial awarded as to him-.
Berry, J., was absent and took no part in this case.