GYLE v. SHOENBAR, 23 Cal. 538

Crocker, J. delivered the opinion of the Court—Horton, J. concurring. This is an action to recover the sum of four hundred and ninety-four dollars and seventy-four cents, which the complaint alleges the defendant promised to pay the plaintiff, if he would release one Levinson from the payment of a debt which the latter owed the plaintiff.

The complaint alleges that the plaintiff did release the Levinson debt, and that the defendant was therefore liable to pay the sum agreed upon; and the Court found that fact in favor of the plaintiff, and accordingly judgment was rendered in his favor, from which the defendant appeals. The assignment of error is, that there was no evidence to sustain the finding that the Levinson debt had been released by the plaintiff.

It appears from the evidence that Levinson was engaged in selling goods in Tehama, when, becoming heavily indebted to various persons, especially the defendant, the latter purchased his stock of goods, notes, and book accounts, in satisfaction of the debt due to him, and for other considerations, as is alleged.

The plaintiff testified as a witness on his own behalf, and stated that at the time the defendant bought out Levinson, he promised to pay him his debt against Levinson, which amounted to the sum before stated; that defendant told him he wanted him to stay in the store, and he would pay him his debt, and the same wages that Levinson had paid him; that he saw defendant afterward in San Francisco, in April, 1861, when he promised to pay him in two weeks.

The plaintiff does not state that he ever released Levinson from the payment of the debt, and after a careful examination of the evidence we are unable to find any evidence to that effect. This release was the alleged consideration of the promise of the defendant, and is an essential fact to be proved, it having been put in issue by the pleadings. (Lewis v. Myers, 3 Cal. 475.) It may be that it was a mistake of the pleader in averring that such was the consideration of the promise; but if so he should have corrected the mistake by amending the complaint. Hot having done so, his proof must conform to his pleading.

Ho other consideration for the promise is alleged in the complaint or found by the Court; and this being unsustained by any evidence, the Court erred in its finding in this respect, and such error constitutes a proper ground for reversing the judgment and ordering a new trial. (Cummins v. Scott, 20 Cal. 83.) The judgment is therefore reversed and the cause remanded for a new trial.