dissenting.
This is the third time this case has been before the court. The first opinion is found in 82 Neb. 507, and the second in 95 Neb. 593. In 1901 defendant was in the banking business at Alma, Nebraska, and Shelly-Rogers Company was in the live stock commission business at South Omaha. Cattle belonging to the Shelly-Rogers Com*115pany were sold to one W. P. Summers through the agency of defendant and another. Summers was then living at Lamar, Nebraska. Summers executed a note in the sum of $830, dated October 21, 1901, due June 6, 1902, in payment for the cattle, and also-executed a chattel mortgage covering the cattle to secure the payment of the note. Defendant indorsed or guaranteed this note and delivered it to Shelly-Rogers Company. There was some profit or commission realized by defendant; the amount not being shown by the record.
The note was not paid at maturity, but a renewal note was taken June 6, 1902, falling due December, 1902. December 9, 1902, the original note and mortgage were surrendered and the mortgage released of record. December 16, 1902, Summers executed a renewal note and mortgage, which Shelly-Rogers Company sold to plaintiff, December 20, 1902, but with the promise, however, that they would procure the guaranty of defendant on said note. On the same day Shelly-Rogers Company wrote defendant, so he testifies, that Summers desired to make a renewal of the note which defendant had previously guaranteed; that they were willing to make the.renewal provided he would sign the guaranty, which they inclosed, and which is set out at length in the former opinions. He also says they inclosed a slip giving a list of. cattle covered by the mortgage which showed that the note was amply secured; that, relying on their statement, and believing that this was a renewal of the note dated October, 1901, on which he was liable as a guarantor, he signed the guaranty which is now in suit; that the note which he had guaranteed had been fully released and his liability thereon discharged in June, 1902; that the note taken in June, 1902, had also been renewed and the new note sold and delivered to plaintiff at the time they made these representations to him, but these facts were concealed, and he was induced to sign on the representation that the note which was being renewed was the one executed in October, 1901, and on which he was liable as indorser or guarantor; that he would not have *116signed the guaranty had the truth not been concealed from him, and that there was no consideration for the guaranty which is in suit. On each of the other trials the jury found for defendant, but on the last trial the court directed a verdict for plaintiff, and defendant has appealed.
Appellee contends that all of the issues involved were determined by our former opinions in this case. The district court must have taken the same view; but appellant maintains that there were new issues raised by the amended answer, namely, that the signature to the guaranty was procured without consideration, by concealment of the true facts, and by falsely representing to him that he was guaranteeing the renewal of a note which he had once guaranteed, and on which he was then liable, and that his signature to this guaranty would work an extension or renewal of this old note, and that without this new guaranty this renewal would not be taken, while in truth and in fact the note which he had previously guaranteed had been surrendered, and his liability thereon had ceased; that this guaranty would not, and did not, procure the extension of time, or renewal of any note, but that this renewal had already been effected, that the new note had been given 14 days before, and had been sold and delivered to plaintiff 10 days before defendant executed the guaranty; and that “had defendant been advised of the actual state and condition of the said Summers note, he would have refused to sign said slip.”
The correctness of the court’s ruling depends on whether there was any question of fact, not previously determined, for the jury to determine from the evidence. The first opinion, so far as material here, reiterated the rule that “the extension of time of payment to a principal debtor is a sufficient consideration to support a new contract of guaranty made after the date of the renewal of such obligation, especially when the guarantor at the time of making such guaranty is still liable as guarantor for the payment of the debt renewed.”
*117This was reiterated in the second opinion, and a number of other questions determined. The law laid down in these opinions is nowhere questioned on this appeal. On the last trial defendant by amended answer alleged, in substance, that this guaranty was procured by fraud. Defendant’s testimony supports this allegation of the answer. It is trué that there are many things in the- record to raise an issue on this question. The answers filed on the former trials are incorporated in the bill of exceptions, the correspondence between the parties is shown, and excerpts from the briefs heretofore filed by appellant are set out in the brief of appellee. From these it is argued that defendant guaranteed the renewal note given by Summers in June, 1902, and was still liable thereon when'he executed the guaranty in suit, in December of that year. This guaranty was mailed to defendant by Shelly-Rogers Company, but the letter accompanying it was not produced. Defendant testified that he did not guarantee the renewal note taken in June, 1902, and did not know that a new note was taken in June until the second trial of this case, and had no knowledge whatever that the note had been extended or that he had been released. There is testimony for the plaintiff showing that the defendant had guaranteed the note executed in June, and that his liability still existed. Indeed, there is a sharp conflict in the evidence on -this question, and different minds may draw different conclusions therefrom. This is a question that has not been determined on either of the former trials, and is a material question of fact which ought to have been submitted to the jury.
The material questions presented were: (a) Had defendant already been released from liability on his original guaranty at the time he executed the guaranty in suit? and (b) was he induced to sign this guaranty by the false representations made by Shelly-Rogers Company at the time his signature was procured? On the record a verdict might be sustained for either party. Such being the case, it was error to instruct a verdict for the plaintiff. Defendant was entitled to have these questions submitted to the *118jury. They did not fall within “the law of the case,” because they were then presented for the first time.