Phelps v. Sargent, Nos. 11,012-(104)

Nos. 11,012-(104) | Minn. | Jul 8, 1898

CANTY, j.

This is the second appeal in this action. See 69 Minn. 118" court="Minn." date_filed="1897-06-28" href="https://app.midpage.ai/document/phelps-v-sargent-7969991?utm_source=webapp" opinion_id="7969991">69 Minn. 118, 71 N. W. 927. All of tbe questions raised on this appeal except one were disposed of on tbe former appeal, and have become tbe law of tbe case.

After tbe case was remanded on tbe former appeal, defendants answered, and allege in tbeir answer that, at tbe time defendant Howard transferred the note in suit to Hewit, it was agreed between them that “Howard should not be in any manner liable on said promissory note until after tbe maturity thereof on tbe 1st day of July, 1898.” It is not alleged that there was a mutual mistake in reducing this agreement to writing, or in incorporating it into tbe guaranty, and tbe answer contains no counterclaim for tbe reformation of tbe guaranty on any such ground. On tbe trial, defendants offered to prove that tbe above-quoted agreement was orally made at tbe time alleged.

Tbe court did not err in rejecting tbe offer, which was clearly an attempt to vary tbe written contract of guaranty by an alleged -oral agreement made at tbe same time that tbe written contract was made.

Tbe court did not err in ordering a verdict for plaintiff.

Tbe order denying a new trial is affirmed.