Majority
Headnote
1. Guaranty (§ 91[2] )—Credits—Evidence.. Plaintiff appeals from a judgment in its favor, claiming that it was entitled to recover more than has been awarded to it. The action, which was brought originally against Joseph Weisel, and continued against his executrix, is based upon a written guaranty of payment of a chattel mortgage, executed by one Emil Weil to plaintiff. The mortgage was given to secure the sum, then due, of $3,623.39, and all other sums due or to become due. The controversy is as to the amount due. It appeared that plaintiff advanced to Weil $1,300 per annum to pay his liquor tax, which he repaid at the rate of $100 per month, except for one month. He also paid his bills for beer sold him by plaintiff, except for two weeks, amounting to $354.97. Plaintiff made him further cash loans, and allowed him, as against his indebtedness, 10 per cent, of his gross beer bills. The net result of these transactions is that there was due from Weil to plaintiff, according to the claim of the latter, $3,804.97 when the chattel mortgage was foreclosed. The foreclosure realized $1,000, and the plaintiff accordingly sued in this action for the balance of $3,804.97.
The defense was a general denial, and under it defendant undertook to prove that much less was due, claiming that by agreement between plaintiff and Weil the latter was entitled to a credit upon the mortgage debt of $3,768.40, being the aggregate amount which Weil had paid to plaintiff on account of license fees advanced by the latter. Weil testified that at the time the chattel mortgage was executed, Haebler, the plaintiff’s representative, said that if he (Weil) “had sold $10,000 of beer gross per year that he would deduct the license tax paid from the amount of the original mortgage, along with the 10 per cent, which was paid every week.” Haebler denied that
But, even if Weil’s version of the agreement be accepted, the verdict, as it seems to us, was erroneous. Weil testified generally that he did sell $10,000 worth of beer per year, but he gave no particulars. He must have referred to only a single year, however; for he also testified that he kept account of the amount sold for only one year. It was stipulated that 10 per cent, of the gross sales during the period that Weil was in business, 3 years and 4 months, amounted to $3,153.39, representing gross sales of $31,533.90. It is impossible, therefore, to find upon these figures that his gross sales were at the rate of $10,000 per annum for the whole 38 months that he was in business. Accepting Weil’s testimony at its full value, it justifies no more favorable conclusion than that his sales during a single year amounted to $10,000 gross, which would entitle him to a credit of only $1,300, instead of $3,768.40, which the jury allowed.
The question whether it was competent for defendant to prove under a general denial facts in reduction of the amount claimed to be unpaid must be answered in defendant’s favor. The defendant was not sued upon an absolute promise to pay a definite sum, but only as a guarantor that another would pay at a future time such a sum as might then be due. It was a part of plaintiff’s case to prove what was then due, and the defendant could meet the allegations in that regard by showing that less was due than plaintiff claimed. It is well settled that under a general denial a defendant may disprove whatever the plaintiff is called upon to prove. We think it apparent from Weil’s testimony that plaintiff is entitled to recover more than it has recovered, even if some deduction should be made from the amount claimed.
Judgment and order reversed, and new trial ordered, with costs to appellant to abide the event. All concur.