#### Peck, Appellant, vs. Peck, Respondent.

*March 16*

April *5, 1905.*

*Guaranty: Consideration: Evidence: Special verdict: Instructions to jury: Immaterial errors.*

1. Permitting defendant to testify generally that she did not receive any consideration for signing the guaranty in suit, if . error, was not prejudicial where, without objection, she denied specifically the existence of the agreement which constituted the only consideration claimed.

2. The question being whether a residuary legatee guaranteed payment of the principal of a note of the testator in consideration of the payee’s agreement not to present the note as a claim against the estate, evidence that the testator left no estate *551from which the note could he paid, and that the legatee knew that fact before the making of the alleged guaranty, was admissible.

3. The question whether defendant, by payments, had ratified a change made in the contract of guaranty after she signed the same, was not a proper question for a special verdict, since the ratification, if any, would he merely evidentiary, hearing on the question whether the agreement relied upon as the consideration to support the guaranty was made.

4. Plaintiff testified that at a time when only he and defendant . were present the guaranty “was written and signed by” defendant. It was a conceded fact that the guaranty itself, above defendant’s signature, was not in her handwriting. *Held,*that it was not a prejudicial error for the court, in charging the jury, to state that plaintiff testified that he wrote the guaranty.

Appeal from a judgment of tbe circuit court for Winnebago county: Geo. W. BubNell, Circuit Judge.

*Affirmed.*

Action to recover on an alleged contract of guaranty. It was claimed in tbe complaint tbat on March 19, 1890, O. D. Peck delivered bis promissory note to plaintiff, obligating bimself to pay bim one year from tbe date thereof $2,000, with interest thereon from such date at tbe rate of ten per cent.; tbat on November 14, 1895, defendant signed a writing thereon guaranteeing tbe principal thereof, such writing being in these words: “For value received I hereby guarantee tbe payment of tbe principal on tbe within note;” tbat at tbe time of tbe commencement of this action there was due of such principal over and above payments by defendant $1,550. Judgment was demanded accordingly. Defendant answered, among other things, tbat she signed her name on tbe back of tbe note at tbe time alleged in tbe complaint, but tbat she bad neither knowledge nor information sufficient to form a belief as to whether tbe alleged written guaranty was then thereon or not; and in any event tbat there was no consideration whatever to support it.

There was evidence to the effect tbat there was a writing on tbe note of some sort when defendant signed her name thereon, but as to whether it included tbe words “for value *552received” tbe evidence was conflicting. Tbe evidence was further to tbe effect that tbe maker of tbe note died testate prior to tbe signing of tbe guaranty; that defendant was bis residuary legatee; that subsequent to ber signing tbe guaranty sbe called at tbe bank where tbe note was left for collection and made several payments thereon; and that there was no consideration to support tbe guaranty, unless it was in that in consideration thereof plaintiff agreed not to file any claim on tbe note against tbe estate of tbe maker. As to whether there was such an agreement tbe evidence was in cónflict. Tbe jury found specifically in favor of tbe defendant on both of such disputed matters, and thereon judgment was rendered for tbe defendant, from which plaintiff appealed.

For tbe appellant there was a brief by A. *0. Weissert,*attorney, and *M. H. Eaton*and *Frederick J.*Eaton, of counsel, and oral argument by *L. K. Eaton.*

For tbe respondent there was a brief by Felker, *Stewart &*McDonald, and oral argument by *F. 0. Stewart.*

Marshall, J.

Respondent was permitted to testify generally in answer to a direct question that sbe did not receive any consideration for signing tbe guaranty. We are unable to see bow, under any reasonable view of tbe case, appellant was prejudiced thereby, even if tbe question were improper, since there was no claim made that any consideration was rendered for tbe guaranty, unless as such appellant agreed not to file any claim against tbe estate of O. D. Peck, deceased, which was denied by respondent by evidence not objected to or objectionable.

Evidence on tbe part of respondent was admitted, under objection, tending to show that when sbe signed tbe guaranty ber rights as residuary legatee of O. D. Peck were valueless, — as bearing on tbe probability of whether sbe acted under tbe circumstances testified to by appellant. We can*553not agree with the latter’s counsel that such evidence was immaterial. There was a square conflict between him and respondent as to whether the alleged agreement was made. It was perfectly obvious that she had no financial reason for signing the guaranty, unless she at least supposed she had a subsisting interest in the estate of O. D. Peck, deceased, to he conserved thereby. It was quite unnatural on the face of things for her to bind herself, without consideration, to pay the debt of the deceased. In that view evidence of facts inconsistent with the making of the disputed contract was perfectly proper upon elementary principles. True, if appellant supposed she had an interest in the estate of O. D. Peck, -deceased, which would be conserved by making such a contract as the one claimed, it was immaterial whether she had such interest or not. That is as far as the authorities go, cited to our attention by appellant on this branch of the case. The evidence objected to, on the whole, was not only to the effect that Peck left no estate out of which the note could have been paid, but that respondent knew that fact long before the making of the guaranty, and before he died.

Complaint is made because the court refused to require the jury to determine, in case they found in respondent’s favor that the words “for value received” were not on the note when she signed it, whether after she knew of the addition thereto she ratified the same. The only claim of appellant on that point was that she, with knowledge of the change in the writing, if there were such change, made payments thereon. Suppose she did and that the making thereof ratified any change theretofore in the guaranty, it was a mere circumstance bearing on the question of whether the contract was made, relied upon as the consideration to support the guaranty. Being a mere evidentiary matter, not a fact in issue under the pleadings, it was not the proper subject of a question for the special verdict.

*554The court by mistake said to the jury in instructions as to the special questions, “Mr. Peck testifies that he wrote the guaranty on the hack of the note.” ITe did not use those Avords, hut did say that after the agreement was written the guaranty was signed hy *Mrs. Lucinda*W. *Peck.*It is conceded, as we understand it, and as the fact appears to he from the evidence without room for reasonable controArersy, that the writing above respondent’s signature upon the note Avas not in her hand. According to plaintiff’s evidence it was written when only he and respondent were present. So the reasonable meaning of his statement that the guaranty “was Avritten and signed by *Mrs. Lucinda W. Peck”*is that the guaranty was Avritten by him and signed by her. That is the only construction of his evidence that will avoid viewing it so as to convict him of having testified wilfully false. While he did not use the words which the court said he did, clearly he used words of equivalent meaning.

The foregoing covers all the matters referred to by counsel for appellant as grounds for a reversal. The record appears to be free from any prejudicial error.

*By the Court.*— The judgment is affirmed.