Jackson v. Boyles

Reed, J. l. comnnjsenoe of witsuffioieutn" showing. I. Defendants assign as error the overruling of their motion for a continuance. The motion was based on the showing contained in the affidavits of defend- ° an^ Boyles, his physician, and one of the attorneys f°r defendants. It is shown by Boyles’ affidavit that Bowen was called to the state of "Vermont, about two weeks before the term of court, by the sickness of a near relative, and that he had been detained [430] there, and prevented from attending the court by this cause, and that it was not practicable to take his deposition in time for that term of court. The affidavit of the physician shows that Boyles was sick and unable to attend at that term ot court; and that of the attorney shows that the defendants are the only witnesses who are conversant with the facts set up in the answer. It was not shown, however, in any manner, that the presence of either of the defendants was necessary at tlie tidal for any purpose, except to give his testimony as a witness. It was not claimed, in the affidavit of the attorney, that he was not sufficiently advised as to the facts of the case to enable him to present the defense. He swears, it is true, that he cannot go to trial in the absence of his clients, but the reason assigned by him for this is that they are his only witnesses, and that they alone are conversant with the facts. It was necessary, therefore, to set out the particular facts which it was expected would be proved by their testimony. Code, § 2750. This was not done. The allegation in Boyles’ affidavit is that he expects to prove and sustain the allegations of his answer by the testimony of Bowen, while the attorney swears in his affidavit that he expects to prove the allegations of the answer by the testimony of defendants, and that he believes that both of the defendants will testily that the conditions referred to in the note have not been complied with, and that the contracts referred to in said note have not been performed, and, by reason thereof, the note is not yet due. These are not statements of “particular facts” as required by the statute. They are mere conclusions. On this ground we think the motion was properly overruled. 2. eromispayaweon: aitoration of surety?wlat is not. II. Defendant Bowen assigns the sustaining of the demurrer to his answer as error. To make the question determined by the ruling complained of apparent, we here set out a copy of the note, as follows: “$1,218.50. On or before the first day of November, eighteen hundred and eighty-two, we, or . | . &T ■A ’ _ ’ either oí us, promise to pay to J ackson, Lowe & [431] Go., or order, the sum of twelve hundred and eighteen and fifty hundredth dollars, with interest from the first day of November, 1881, at the rate of eight (8) per cent per annum, and conditioned upon the fulfillment of a written agreement of Jackson, Lowe & Oo., of even date herewith. Yalue received. Payable at Centerville, Iowa. Sept. 20, 1881.” After the delivery of the note, and without the consent of defendant Bowen, as he alleges, the following memorandum was written on the margin of the instrument, and signed by Boyles: “Jackson, Lowe & Co. have complied with the conditions of the within note. J. K. Boyles.” The claim is that this endorsement had the effect to change the conditions and terms of the contract in a material respect, and that he is thereby discharged from liability thereon. The general proposition that any material change or alteration of a written contract after its delivery, without the consent of the maker, discharges him from liability thereon, is, of course, conceded. But we are of opinion that the district court correctly held that the endorsement ^n question did not have the effect to in any manner change the terms or conditions of the note. The note by its terms becazne due on the pez’formancc of a specified agreement by the payee. The eudoi’sement does zzot undertake to chaizge the condition, zzor to release the payee from its perfornzazzce. It is simply a written admission that they have performed it. The fact that it is eizdorsed on the paper on which the note is wz-itten is zzot material, for it is apparent from its terms that there was no intention to change any condition of the note; and it has no different effect frozzz what it would have had if it had been embodied in a letter or other writing signed by Boyles. It is simply prima facie evidence that the condition precedent to the maturity of the note has happened. [432] 3. evidence: performance of contract: the facts and not Hie conclusionshould errrawtiiout prejudice. [431] III. Oh the trial, one of the plaintiffs was permitted to testify, against defendants’ objection, that they (plaintiffs) had [432] complied with the terms of the written agreement referred to in the note. The objection to this testimony was that it was the statement of tbe mere opinion or conclusion of the witness, objection, should. have been sustained. The contract referred to was in evidence, and it provides for the performance by plaintiffs of a number of conditions and undertakings, and whether they had performed the contract or not depended on whether they had done tbe particular things which, by its terms, they undertook to do. But we are of opinion that defendants suffered no prejudice by the admission of the testimony, for the evidence, aside from the general statement in question, shows, without any doubt or dispute, that plaintiffs had performed all of their undertakings in tbe written contract referred to. Other questions are discussed by counsel, but they are not regarded as material, and we clo not consider them. We have examined the record carefully, and ñnd no prejudicial error, and the judgment is accordingly Affirmed.