¶1Mr. Justice Heydenfeldt concurred.
¶2The promise on the part of plaintiff to stay proceedings under his judgment against Richardson, was a condition precedent to the guaranty sued on, and performance on his part should have been alleged and proven, to entitle him to recover against defendants.
¶3This was not done in the opening, and defendant was entitled to a judgment of non-suit.
¶4The defendant, however, after his motion was denied, introduced evidence which enabled plaintiff to supply the defect in his case, and by so doing, waived the objection. See Ringold v. Haven, 1 Cal. Rep., 108.
¶5From the whole record, the right of plaintiff to recover clearly appears 3 and we will not disturb a judgment, when it is evident that a new trial must be attended with the same result.
¶6The judgment is affirmed with costs.