The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1889-06-06

ants, by agreement of the plaintiffs ana
with their consent, had executed the new
notes to plaintiffs in lieu of and srbstitu-
ton for the notes sued on, and that the
sued on notes were then and
there received in payment ano
satisfaction of said old notes.
Also that by agreement and in considtra-
ton of aforesaid agreement the defend
ants then and there submitted TO nave
said new notes discounted at the rate of
u Der cent per annum, and the said notes
were 80 discounted and passed to credit OF
defendants. The court, on suggestion OF
plaintiff, refused TO hear such evidence or
permit 1t to go to the jury. To this ruling
the defendants excepted, and asked that
the same be made part of the record.
1t may be admitted, says Justice
Gaines, that where creditor res
ceiyes of debtor new
promissory note, with the understanding
that it is taken in satisfaction of the old
indebtedness, the prior debt Is extin-
guiAhed. But the question arises, whether,
in the absence of a statement of facts, we
can say thet the plain ifs in error have
been prejudiced by the ruling in questson.
Held: That, as rule, this court will
not, without statement of facts, revise
the rulings of the court below in the ad-
mission or exclusion of evidence; ye',
where the evidence appears material and
relevant to the issues under any probable
state of the testimony, and where the
ground of objection is one that is not
tenable, the bill of exceptions ought to be
considered and the ruling reversed,
M OF Of faNtS nnnaura n
the record.
1t is to be noted, adds Judge Gaines,
that the otes were in defendants posses
sion and made part of their pleadings. If
they were ever in the hands of the plain
tiffs,, the fact that at the time of filing the
answer the defendants had the notes,
tends to establish the plaintiffs replica
ton that they were to be taken in salts
faction of the old notes upon condition
with which the defendants failed to COM
ply. We cannot say from the record that
defendants, as witnesses, may not have
distinctly admitted in their testimony
that they were to pay 81 800 in cash before
the agreement for the extinguishment of
the old notes should take effect, and that
they had failed to pay the money accord
ing to contract. If SO, the exclusion of
the evidence did not harm defendants.
If the bill itself had shown that no other
evidence had been introduced upon the
particular issue, or had shown that the
evidence was excluded solely upon the
ground that, in the opinion of the court,
the execution and delivery of the new
notes, under the circumstances, propose d
to be passed, did not discharge the
old, it might call for different ruling.
Held: Where record shows the pro-
ceedipgs only in part, every reasonable
presumption will be INDUCED in favor of
the courts ruling, and the case will not be
reversed unless it appear that upon no
possible state of the case could the ruling
be upheld. Where this court cannot say
that there was manifest error in exclud-
ing the testimony under consideration, the
assignment of error predicated upon such
ruling will be held as not well taken.
The assignment of excessive verdict be-
ing confessed by remittitur, the judgment
is affirmed, less the amount RENTED.