(concurring):
The appellant seeks to spell out a ■ consideration for the oral contract of guaranty upon the ground that the plaintiff, before and at the; *175date fixed for closing the title, refused to allow his wife to complete the purchase because the original contract had not been complied with, and contends that the defendant procured him to consent to the completion of the purchase by agreeing to guarantee a dry cellar.
There would be much force in this proposition were it not that the plaintiff joined with the defendant in asking the court to direct a verdict, thereby leaving to the trial judge the determination of whatever controverted questions of fact there might be in the case. One of these questions was, whether any controversy actually did arise between the plaintiff and the defendant as to the fulfillment of the original contract. It appears by the decision of the learned trial judge that he decided this question adversely to the plaintiff. In refusing to alter the minutes, as requested by the plaintiff, after declaring that there was no evidence, or, indeed, claim that the original contract was not complied with, the learned judge said: “ There was no claim or dispute on that head.” In view of this determination I think the judgment must be affirmed.
"Woodward, J., concurred.
Judgment- and order affirmed, with costs.