The record presents bnt one point for review, which is, was there any substantial evidence tending to support the finding of the trial court ? The testimony of plaintiff and the testimony of Irvine, one of the parties of the first part, tended to prove the execution of the contract in suit; the use of the money paid by the plaintiff to said Irvine on behalf of the corporation issuing the stock and in promotion of its objects; the cessation of payments by plaintiff upon an instruction to that effect given by defendant; that the corporation itself never became a going concern, but was entirely abandoned, and that no earnings were made by it. The .only evidence to the contrary is that of defendant, which is not altogether reconcilable as to his understanding of the contract, with the written terms and provisions contained therein, which it is admitted he signed, lie further admitted that he advised plaintiff to cease making further payments, but claims that he thought plaintiff’s previous payments were personal advances made by him and not rendered in compliance with the terms of the written agreement. The trier of the fact adopted the view sustained by the evidence for plaintiff and the terms of the written contract. This being sufficient to support a recovery, there was no error in overruling the demurrer to the evidence interposed at the end of the trial.
Appellant submits, in his brief, propositions of law governing the undertakings of guarantors and sureties. As no declarations of law embodying these views were submitted in the lower court and refused by it, we must assume that the court comprehended the law on this subject and correctly applied it to the facts.
It is also insisted by appellant that the court incorrectly admeasured the damages to which appellant was entitled, in that it failed to allow him the difference in value which the stock he agreed to buy would have borne if the guaranty as tc *489the earnings had been fulfilled, and its actual value at the date fixed by said guaranty, to-wit: January 1, 1895. Plaintiff .recovered the amount paid out by him with six per cent interest. No instructions were asked on the subject of damages. The presumption is, therefore, the court adopted the proper rule on that subject. Heinrich v. City of St. Louis, 125 Mo. 424. At any rate, had the suggestion by appellant been adopted, it would only have increased the damages recovered by plaintiff. Appellant, therefore, is not prejudiced by the assessment of damages at the amount paid by respondent, together with interest.
Something is said in the brief of appellant about the case having been tried upon a fourth petition. It is not shown by the record that three petitions in this cause had been adjudged insufficient upon adversary pleadings. The point presented is, therefore, untenable. R. S. 1899, secs. 622, 623.
It follows the judgment herein is affirmed.
All concur.