#### Lauerman Brothers Company, Respondent, vs. National Surety Company, Appellant.

*September 12*

December *5, 1916.*

*Principal and, surety: Agreement to pay debts.*

*A*finding by tbe jury that the defendant surety company promised to assume and pay the debts of one R. upon conveyance to it of all his property to protect it on its liability on its bond as surety, is *held*to be sustained by the evidence.

• Appeal from a judgment of the circuit court for Mari-nette county: W. B. Quinlan, Circuit Judge.

*Affirmed.*

Action upon a promissory note executed and delivered to the plaintiff February 6, 1909, by one II. L. Roe. The complaint charges that in consideration of the transfer by said Roe of all his property to the defendant it agreed to pay all debts of Roe and that upon learning of said agreement plaintiff accepted the same. Roe was town treasurer and the de*358fendant was surety on bis bond. Tbe jury by a special verdict found tbat tbe defendant promised Roe tbat if be transferred all bis property to it, to protect it on its liability on its bond as surety, it would assume and pay all bis debts and obligations. Judgment in favor of plaintiff was entered upon sucb verdict and tbe defendant appealed.

*Henry T.*Scudder, for tbe appellant.

*P. A. MartineaUj*for tbe respondent.

Tbe following opinion was filed October 3, 1916:

ViNJE, J.

Tbe only question litigated upon tbe trial was wbetber or not tbe defendant made tbe promise to pay Roe’s debts upon tbe conveyance to it of bis property to indemnify it against loss on its surety bond. Defendant’s counsel makes tbe claim on appeal tbat tbe agreement was for an absolute conveyance, and tbat since no sucb conveyance was made defendant is not liable. Tbe evidence does not sustain sucb claim. Mr. Roe and bis attorney, Mr. Walsb, wbo made tbe agreement with the defendant, both testify tbat tbe conveyance was for tbe purpose of protecting tbe defendant against loss on its bond; and Mr. Cbaflin, wbo made tbe agreement on behalf of defendant, testified in answer to tbe question, “You got all tbe property and tbe ownership of all tbat property?” “Yes, to be held in trust until be could pay us.” In another place be states: “Tbe difference between the testimony of Mr. Roe and Mr. Walsb and myself is tbat I deny tbat we promised to pay tbe debts.” There was no issue made by tbe pleadings on tbe question of absolute conveyance and none by tbe evidence. As before stated, tbe only litigated fact was wbetber or not defendant promised to pay Roe’s debts. Upon this question tbe evidence was conflicting. Roe and Walsb testify tbat sucb a promise was made and Obaflin denied it. Sucb being tbe state of tbe evidence, tbe finding of tbe jury, sustained by tbe trial court, cannot be set aside.

*359The claim that all of Eoe’s property was not conveyed is not sustained by the evidence. Eoe testifies that it was all conveyed and Chaffin admits it in the testimony quoted above, and the court so found. The other assignments of error as to the' admission or rejection of evidence are not deemed of sufficient importance to merit treatment. The real litigated question having been found against the defendant upon sufficient testimony to sustain the finding, the trial court properly awarded judgment to plaintiff.

*By the Oourt.*— Judgment affirmed.

A motion for a rehearing was denied, with $10 costs, on December 5, 1916.