Brenner v. Weaver

By the Court, Kingman, J. The record shows that Lee A. Hoffman gave his note to Hartman & Weaver for seventy-four dollars and thirty-two cents, in the usual form, to which is added this stipulation: “ This note is' given to Hartman & Weaver for notes and accounts received of them. Now, if there should be any legal accounts or offsets brought against said accounts or notes, the saméis to be deducted from the amount of this note.” Upon this note, without date, is the following undertaking: “For value received I promise to pay the within mentioned money to Hartman & Weaver. Adam Brenner.” The note, after maturity, was assigned to the defendant in error, who brought suit thereon against the plaintiff in error before a justice of the peace, and after several continances, at the instance of plaintiff in error, a judgment was rendered against him for the amount of the note. The judgment was taken to the district court by writ of error, and there affirmed, and is now brought to this court for revision. Three grounds of error are set forth in the petition to the district court, and as we cannot consider here any question that was not brought before and passed upon by the district court, the errors only allcdged before that court will be examined. [492] 'These errors are: First. That the justice erred in overruling the motion of the defendant below. Second. There was no service of process in the cause, or notice to defendant. Third. That the judgment was for the plaintiff below, when it should have been for defendant. As to the first error alleged, it is sufficient to say that the record does not give us any facts upon which w'e can predicate an ^pinion. It merely shows that the plaintiff in error moved the court to dismiss the case on the ground that “ notice had not been given to the defendant of .non-payment of the note in proper time. ’ ’ If notice were necessary, which is not conceded, it was the duty of the plaintiff in error, if he decided to test its sufficiency, to have incorporated it into the record by a bill of exceptions. It seems by terms of the motion that notice of non-payment had been given and was in proof. The only difficulty was whether it had been given in proper time, upon which pbint the counsel and the justice differed. Which was right we cannot tell, having none of the means necessary thereto. The second error is groundless. Not only was there service of process, but the appearance of the defendant by himself and counsel appears from the record. The only other error alleged, of which we can take notic, is, that there was no bill of particulars filed, (save the note with the undertaking indorsed thereon.) We think this was enough. The suit was brought on the undertaking of Brenner, and that was filed. It was absolute in its character, and cannot be held as a guarantee. It docs not purport to be a guarrantee that the money shall be paid at maturity or any other time. It is a full promise to pay the same, and had nothing to do with the note except to refer to it to ascertain the amount to be paid. It may well have been [493] that by arrangement between the original parties and plaintiff in error, that he became the sole payor of the debt. We have no means of knowing. The record shows that testimony was taken, but its character and tendency is not disclosed, ft must bo presumed to be sufficient to sustain the judgment. But even if we are wrong in treating Brenner’s promise as absolute, instead of guarrantoo, it will not change the matter, for even in that case the guarantor is not entitled to notice of non-payment, at least till he has proven that the want of notice has done him a prejudice. (See Sto?'y on Bills of Me., § 305, and note 2.) This does not appear; so that the want of an allegation of notice in the bill of particulars is no defect. The judgment of the district court having been in accordance with this opinion, is affirmed with costs. All the justices concurring.