Union Collection Co. v. Rogers

Action upon Guaranty of Indebtedness—Terms of Payment—Pleading—Proof—Immaterial Variance—Guarantor not Misled.— Where the complaint, in an action against the individual defendant upon his contract of guaranty of the indebtedness of the corporation defendant to plaintiff’s assignor, alleges that by the terms of the written guaranty it was agreed to pay the indebtedness with interest in installments at the rate of $75 per month, but the proof was that the writing merely guaranteed the principal sum with interest, and shows a variance as to the installments, it is held that where such variance could not have misled the guarantor to his prejudice in maintaining his defense that he had signed no guaranty at all of the debt in question, the variance was immaterial.

Id.—Terms of Payment Immaterial—Lapse of Installments Before Suit—Absence of Objection to Evidence—Avoidance of Objection.—Whether or not the balance of the indebtedness was payable at once or in installments is of little or no importance, since in either case the whole of the indebtedness was long overdue before the action was commenced, and there was no objection to the evidence or motion for nonsuit on the ground of variance or any ground; and if such objection had been made, it might have been obviated by an amendment to conform the pleading to the proof.

Id.—Allegation and Finding as to Installments Disregarded.—In view of the time of the commencement of the action, the allegation and finding to the effect that the balance of the indebtedness was to be paid at the rate of $75 per month may be disregarded, where there is left the allegation and finding that the principal obligor in writing promised to pay the balance of the indebtedness with the specified interest, and that the appellant in writing guaranteed the payment of the same, the whole balance being due and unpaid when the action was brought.

Id.—New Trial not Grantable for Variance not Objected to.—It is held that a new trial should not be ordered on the ground of the variance complained of, especially as the point was not raised in the court below either upon objection to evidence or upon motion for a nonsuit.

Id.—Support of Finding as to Written Guaranty of Debt—Conflicting Evidence—Preponderance.—Where there is a substantial eonflict in the evidence as to whether the appellant guaranteed in writing the payment of the principal debt, the appellate court cannot disturb the finding of the trial court on the ground that the trial court has not decided in accordance with preponderance of the evidence.

Id.—Cross-examination as to Execution oe Guaranty—Striking Out Answer not Prejudicial.—It is held that the court did not err to the prejudice of the appellant in striking out his answer on cross-examination denying the execution of the contract of guaranty, where in other answers to other questions the appellant had fully and clearly covered the same matter.