ON REHEARING. Plaintiff testified, before he produced his books in court, that the account was headed "Truman B. Hopkins" but he thought that the word "Carl" appeared in parenthesis after the word "Hopkins." When the books were introduced in evidence the words "Truman B." did not appear and instead of the word "Carl" following the word "Hopkins" being in parenthesis it was set off by comas. Another account appeared in plaintiff's book of accounts in the name of "Hopkins, T.B." Defendant claims that the evidence shows that all the accounts kept by plaintiff were kept in the same way, that is, that the surname of the debtor appeared first and the given name second. The record is not clear as to how the other accounts, other than the two accounts mentioned, were kept. Plaintiff was asked —
"Q. The first name that always appears would be the fellow's last name, Henry J. Caussfeld, you would put the name Caussfeldlast in every case? A. I have been keeping books in that manner."
In view of the form of the question it is impossible to make heads or tails out of the answer of the witness.
We admit there is strong evidence in the record tending to show that the credit was originally extended to Carl Hopkins, as is now claimed by the defendant, and not Truman B. Hopkins. We are now asked to declare as a matter of law that the credit was not extended to the defendant. We think that all of the conflict in the testimony, real and apparent, was for the jury, and we are unwilling to invade the province of the jury, as the triers of the facts, even though the evidence may in our opinion strongly preponderate in defendant's favor.
It is claimed as throwing light upon the question as to whom the credit was extended, that defendant was entitled to show not only that plaintiff had accepted a payment upon the note from Carl but that a suit upon the note against Carl was brought and pursued to judgment. The showing that suit was pursued to judgment might possibly have had some bearing upon the question but the testimony was offered expressly as tending to throw light upon the issues of estoppel or the claimed election on the part of plaintiff to hold Carl instead of Truman. The court was asked to rule upon the evidence from this standpoint alone. In ruling upon the objection, the court stated that if plaintiff accepted the note, "it had nothing to do with this case and nothing with this defendant." It is insisted that this statement of the court in the presence of the jury *Page 1040 was prejudicial. There was no exception to the remarks of the court, the exception being merely to the ruling made upon the objection. Thereafter what was purported to be a judgment against Carl Hopkins upon the note was offered in evidence by the defendant.
The burden is upon defendant not only to show that the court committed error but that the error substantially affected the rights of the defendant. [Lower v. Coal Mining Co.,142 Mo. App. 351.] Even had the testimony been offered on the question as to whom the credit was originally extended, we fail to see how the defendant could have been injured by the court's excluding it. The jury had already learned that the note had been taken and that a payment had been made and that a suit had been brought upon it. The necessary inference to be drawn from the filing of suit was that plaintiff was seeking judgment upon the note. The jury knew that plaintiff was pursuing Carl upon the note, that really was the matter that defendant was attempting to get before the jury; that is to say, that defendant accepted the note of Carl and had collected it in part and was attempting to collect the balance, thus tending to show that it was Carl's debt in the beginning.
It is still strenuously insisted that as a matter of law plaintiff cannot now pursue Truman for the reason that he elected to hold Carl by bringing suit against Carl and pursuing that suit to judgment. For the purpose of disposing of this point, we may assume that suit against Carl was pursued to judgment. We think that there are no inconsistent remedies involved. Of course, there is no claim that in the beginning Carl agreed to pay the debt of the defendant, the evidence tending to show that credit was extended to the defendant, and that Carl was not looked to at all. Afterwards when plaintiff was attempting to get settlement of the account he took the note of Carl. It is, therefore, claimed that either Carl or Truman was liable for the debt and that both of them could not be liable and that plaintiff having taken the note of Carl and sued Carl on the note and pursued the suit to judgment, he elected to hold Carl. The trouble is that defendant fails to distinguish between the two transactions, that is, the original one extending the credit to Truman and the second or the giving of the note by Carl after the credit was extended and materials furnished. The jury could have treated these, under the evidence, as two separate and distinct transactions. There is no question but that one may promise to pay a debt of another after it has been made and may give his note for that debt and be pursued thereon while at the same time the creditor intends to hold both the original debtor and the giver of the note. There is nothing inconsistent in this idea. It was stated in Chorn v. Zollinger, 143 Mo. App. 191, 195 ___ *Page 1041
"`The law in this State is settled that the acceptance of a note either of the debtor or of a third person for a pre-existing debt is no payment, unless the creditor expressly agrees to take it as payment and to run the risk of its being paid.' [Shotwell v. Munroe, 42 Mo. App. 669; State ex rel. v. Wagers, 47 Mo. App. 431; McMurray v. Taylor, 30 Mo. 263.]" (Italics ours.)
As fully shown in the original opinion, there was ample evidence that the note was not taken in payment of the debt. We think there was no election of remedies in this case. The facts in this case are wholly unlike those in the case of Commercial Bank v. Central National Bank, 203 S.W. 662, and other like cases cited by the defendant.
The judgment is affirmed. Arnold, J., concurs; Trimble,P.J., absent.