Martin v. Monger

Wood, J., (after stating the facts). The appellant did not make any specific objection to the admission of the testimony which he now contends was incompetent because it tended to contradict the terms of a written contract. At least part of the testimony admitted was competent, and the appellant is not in an attitude to complain of the ruling of the court in admitting it all, for he only made a general objection. “A general objection to the entire testimony of a witness is insufficient where a portion of the testimony is competent.” Central Coal & Coke Co. v. Niemeyer Lumber Co., 65 Ark. 106. See also Maxey v. State, 76 Ark. 276; Mallory v. Brademyer, 76 Ark. 538; Kansas City So. Ry. Co. v. Leslie, 112 Ark. 305. It was a question for the jury, under the testimony, as to whether or not the appellant perpetrated a fraud upon appellee in entering into the contract. The court erred in granting appellee’s prayer for instruction No. 7, above set forth. If the contract was free from fraud in its making, then appellee is bound to perform it according to its terms, for it is unambiguous and was an absolute guaranty to pay. the accounts by August 15, 1913. The language of the instrument, when construed as a whole, shows an absolute guaranty on the part of the appellee to make all accounts “good at collection time,” and collection time was August 15, 1913. The court, as indicated by the seventh prayer for instruction, granted at the instance of appellee, construed the contract not as an absolute, but as a conditional, guaranty. This was error. In the case of “an absolute guaranty, the guarantor is bound immediately upon the failure of the principal debtor to perform his contract, without any further steps taken by any one, or without further conditions to be performed.” 20 Cyc. 1450-1458. “An absolute guaranty will not be affected by failure of the guarantee to make demand or give the guarantor notice of the principal’s défault.” Lane v. Levillian, 4 Ark. 76. The instrument sued on evidenced an original undertaking upon the part of appellee to make good all the accounts described therein at collection time, and in such case nothing was necessary to be done, as we have seen, on the part of the guarantee by way of attempting to collect the accounts. See Friend v. Smith Gin Co., 59 Ark. 86; Braddock v. Wertheimer, 68 Ark. 423; Stewart v. Sharp Co. Bank, 71 Ark. 585, and other cases cited in brief of counsel for appellant. If the language of the instrument had been simply “I certify that the accounts are true,” and ended at that, or if the language were “I guarantee that the accounts are good,” then counsel for appellee may have been correct in his contention that the instrument in controversy was but a conditional guaranty, but it will be observed that the language of the instrument shows that the appellee intended to “make the accounts good at collection time.” The language can only mean an absolute guaranty at collection time. Appellee’s seventh prayer for instruction, therefore, was inherently defective. Inasmuch as it is impossible to tell whether or not the verdict was based upon this instruction, for the error in granting it the judgment must be reversed and the cause remanded for a new trial.