#### Brinker, Respondent, vs. Meyer and others, Appellants.

*November 23*

December *15, 1891.*

(i) *Evidence to vary written contract: Contemporaneous writings. (0) Bond to pay debts: Notice of action: Costs.*

1. In an action upon a bond conditioned for the payment of all the debts of a firm, a list of debts, made at the same time as the bond but omitting the debt -whose nonpayment is alleged as the breach of the bond, is not admissible in evidence to show the extent of the liability of the obligors on the bond.

2. The obligors in a bond conditioned for the payment of the debts of a firm are not liable for the costs of an action against the firm upon one of such debts, where notice of the action was not given nor its defense tendered to them.

APPEAL from the Circuit Court for *Ashland*County.

Action upon a bond conditioned for the payment of all the debts owing by a certain firm at the time of its dissolution. The facts will sufficiently appear from the opinion.

*John F.*Dufv/r, for the appellants,

to the point that all contemporaneous written agreements were admissible in evidence and should be construed together, cited 1 Greenl. Ev. sec. 286; *Hahn v.*Doolittle, 18 Wis. 196; *Ballston Spa Bank v. Marine*Bank, 16 id. 125; *ET/more v. Hqffmcm,_*6 *34id. 68; *Goojper v. Tarppcm,*4 id. 362, and note; *Norton v. Kearney, 10*id. 443.

For the respondent the cause was submitted on the brief of *Rossman da Foster.*

OetoN, J.

The respondent, *Henry*Brinlcer, and the appellant *J. G. Meyer*were partners in the lime and cement business. The respondent sold out his interest in said business and in its credits to the new firm,'consisting of said *J. G. Meyer*and *T. F. Hubbell,*and the firm of *Meyer da Hubbell,*as principals, and *Jolm MeGarf/y*and *Fames M. Haggerty,*as sureties, gave the respondent a bond indemnifying him against all debts and claims against the old firm. This action is on the bond, alleging that they were indebted to R. O. Dun &>Co. in the sum of $15, and that said R. 0. Dun *&*Co. obtained judgment thereon against the respondent and the appellant *J. G. Meyer*before a justice of the peace, together with $11 costs; and that the defendants therein appealed to the circuit court, and the appeal was dismissed for want of prosecution, with $40 costs. Execution was issued on said judgment against the respondent and said *Meyer,*and the respondent has been compelled to pay the same, together with said costs, and this action is to recover the same against the appellants; and judgment was rendered against all of the appellants, as the obligors of said bond, for the same, and this appeal is from said judgment.

The defendants, except said *Meyer,*answered, alleging, in substance, that there was a list or schedule of the debts of the old firm made when the bond was given, and this debt in favor of Dun & Co. was not on it, and that respondent assured the defendants that said list contained all of such debts, and that he fraudulently left several hundred dollars of assets out of said list, and that the subject matter of this action had been settled. The court withdrew from the *35jury all of tbe defenses except said settlement, and tbe jury found a verdict against tbe appellants for $132, wbicb consisted of tbe said judgment and costs.

Tbe only error complained of is tbe withdrawal from tbe jury of tbe matters of tbe answer relating to said list or schedule of tbe debts of tbe old firm. Tbe learned counsel of tbe appellants contend that said list ought to have been received in evidence as a part of tbe bond, because it was made contemporaneous with tbe bond, and present at tbe time. Tbe language of tbe condition of tbe bond is that, “ whereas *Meyer*and *Subbell*agreed to pay all tbe outstanding bills and accounts owing by said *Brinleer*and *Meyer”*and “ provided tbe said *Meyer*and *Subbell*pay all just and legal debts due or owing as aforesaid, the obligation to be void, otherwise to be and remain in force.” Tbe admission in evidence of such list or schedule as containing all tbe debts owing by said *Brisker*and Meyer, and tbe debt to the said Dun & Co. left off said list, would materially alter, change, and modify tbe above condition of tbe bond. It would not then be *to pay all the debts*owing by *Bri/nker*and Meyer, but would be to pay only the debts mentioned on said list. Tbe bond is silent as to such list. Such evidence would show a contemporaneous agreement as to tbe ■ payment of thé debts materially different from tbe condition of tbe bond, and this is not allowed by a familiar principle of law. *Racine Co. Bank v.*Keep, 13 Wis. 209. It would require parol evidence to connect tbe list with tbe bond so as to vary or alter its condition, and such evidence is inadmissible. *Jilson v.*Gilbert, 26 Wis. 637; *Knox v.*Clifford, 38 Wis. 651; *Strachan v. Muxlow,*24 Wis. 21.

Tbe ruling of tbe circuit court was correct, and there does not appear to have been any error in tbe record, except as to tbe costs in tbe original judgment, wbicb make a part of tbe judgment against all tbe defendants. It does not appear that any notice was given to tbe defendants *36*Subbell, MoOarty*and *Haggerty*of the action before the justice or in the circuit court, or that the defense thereof was tendered to them. They should not, therefore, be held for the costs in that case. The plaintiff' should, therefore, remit such costs from the judgment as to these defendants, and take judgment for the amount as to them less said costs. *Pool v. C., M. & St. R. R. Co.*53 Wis. 657.

*By the*Go%urt.— The judgment of the circuit court as to the defendant *J. O. Meyer*is affirmed, and as to *John*McCarty, *T. F. Hubbell,*and *James M. Haggerty*is reversed, with option to the plaintiff to remit said costs and take judgment for the residue; otherwise the cause is remanded for a new trial therein as to the said last-mentioned defendants.