To the petition of appellee’s counsel for a rehearing—
JUDGE HINESdelivered the response of the court.
Appellee insists that this court erred in deciding this case-as if the evidence heard below was before this court, insisting that the decision should be on the pleadings and on the motion for judgment for appellee, notwithstanding the verdict. We have considered the point suggested, and see no reason to alter the opinion. The petition charges an agreement, in praesenti, to pay the difference on the draft, whatever it might be, and an acceptance of the proposition on the part of Thompson. The language of the petition is: ‘ ‘ The plaintiff) S. E. Thompson, says that on the 26th day of May, 1876, he was doing business in the city of New York, in the state of New York, as a tobacco, cotton factor, and general commission merchant; that on said day one T. B. Glover had shipped from Louisville, Kentucky, for his account to plaintiff at New York City, twenty-three hogsheads of tobacco, and said T. B. Glover desired to draw drafts upon plaintiff at New York for the full costs of said tobacco: that it was thereupon agreed, by and between plaintiff' and the defendant, Thos. H. Glover, that if the said T. B. Glover should draw for the full cost of said tobacco, and that-plaintiff advance the said cost by paying the said draft, the defendant, Thos. H. Glover, would agree and bind himself to make good and pay any loss that might occur to plaintiff on said twenty-three hogsheads of tobacco; that the saidl *197defendant, Thos. H. Glover, then executed and delivered to plaintiff the writing filed herewith,” &c.
The first paragraph of the answer denies this agreement, and the second paragraph charges that appellant failed to give notice of the acceptance óf the guarantee. Upon the issue formed by the denial mentioned, the question is raised ■as to whether the agreement to guarantee and the acceptance were one and the same transaction. If they were, no subsequent notice of acceptance, -as stated in the opinion, was necessary, and as to whether such was the agreement can only be determined by the evidence in the case. Clearly, upon such an issue, and without evidence, appellee was not entitled to judgment upon the pleadings, unless the principle announced in the opinion is erroneous. If the proposition to guarantee and the acceptance thereof was one entire transaction, as appears from the issue indicated, there could be no judgment for appellee on the pleadings, and no judgment for him in any event, except on failure of proof to sustain the allegations of the petition, and as we have concluded, as expressed in the opinion, that the evidence sustains the .allegations made in the petition, there appears no reason for granting a rehearing or for the modification of the opinion.
Whether appellant is or is not a bankrupt cannot affect the rights of appellee, and the fact that the assignee of appellant 'is not a party to the record cannot affect the merits of the controversy.
Petition overruled.