¶1dissenting.
¶2In my opinion the verdict and judgment is contrary to the weight of the evidence and should be reversed. The evidence compels me to the conclusion that the whole of the indebtedness of W. E. Skinner to D. Sullivan & Co., including the note sued on in this case, was consolidated and extended in the note for $965 due March 8, 1900, and the agreement in execution of which it was given. The consideration for the extension was the additional security given to D. Sullivan & Co. for the indebtedness. The only fact in the case which militates against this conclusion is that the note shed on is mentioned in the $965 note as a collateral security for its payment. This was not in accordance with the agreement of extension, and the evidence does not explain how it happened. The undisputed evidence of the agreement of extension should prevail against this unexplained fact, which cannot, be reconciled with the extension agreement, and what was done under it. The amount of the note for $965 shows conclusively with the other evidence in the case that the $500 note sued on was a part of it and included in it. It could not be included in it and at the same time be excluded from it for any purpose.
¶3The basis of this theory of the transaction is a mere inference from the fact that it is mentioned in the collateral clause of the $965 note, and not taken up and cancelled. The uncontradicted testimony of Skinner is that the note was not taken up and cancelled at the time, by an oversight. In my opinion the consolidation of the indebtedness of W. E.. Skinner to appellees, and the giving of the new note for the whole of it with security, was a payment of the note sued on. Further, the uncontroverted evidence is that the indebtedness evidenced by the note sued on was extended as above stated without the consent of appellant, and by the familiar rule appellant was thereby released from his contract as guarantor or surety.