On Petition foe a Reheaeing.
Gavin, J.If it were conceded that appellant’s acceptance of the guaranty was sufficiently proved by the *184evidence, appellant’s position would not be aided, because tbe evidence would still be sufficient to support the verdict of the jury, that the guaranty had never been acted upon by appellant.
In the complaint is found the express allegation that the goods were shipped and sold upon the execution of this obligation. The mere execution and delivery of the guaranty were not sufficient to create a liability unless the goods were sold and delivered in reliance thereon. This was the only consideration for its execution, and. without it there was no enforceable obligation.
Appellees were not, by the recital of a nominal consideration, estopped to show that there was no consideration. Levering v. Shockey, 100 Ind. 558.
It was essential to appellant’s recovery, that the evidence should show both acceptance and action by appellant upon the guaranty. If the possession and production of the guaranty proved the one, the lack of the other was none the less fatal.
Counsel say, in their petition: “It will not do to take an isolated sentence or paragraph out of appellant’s answer to the counterclaim, but the whole of it must be taken.”
This rule is correctly stated, and should be applied, also, to the consideration of the original opinion of the court in this cause.
The question for determination is not whether each fact or circumstance referred to in the original opinion is sufficient, separately and standing alone, to warrant, the conclusion reached, but whether all taken together will justify it. We did not overlook the many facts recited by counsel favorable to appellant’s views and theory of the case. They were not set forth in the opinion, because, if there were facts proven such as (when considered with the reasonable inferences to be drawn there*185from) tended fairly to support the verdict, then we were not permitted to disturb it, however much the other facts in the case may oppose it, it being the law, as established by many decisions, that the Appellate Court does not weigh the conflicting evidence, but abides by the determination of the jury thereon. We have given to the evidence a careful reexamination in the light of of appellees’ petition for a rehearing', but are still satisfied that the verdict can not be disturbed.
Filed Feb. 16, 1894.The petition for a rehearing is overruled.