
    No. 499
    ELLIOT v. GREENE-BABCOCK CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 5200.
    Decided Sept. 29, 1924.
    480. EVIDENCE—Oral testimony which varies, substantially, the terms of a written instrument not admissible in evidencé.
    561. STATUTE OF FRAUDS—Interpretation of a written guaranty by verbal testimony relating to,-and the account guaranteed by--it, is error. ,
   SULLIVAN, .J.

The Crgen-Babcock,. Co. recovered judgment against 11/E, Elliott for, $1227;65 in the Cleveland Municipal Court without the intervention of .a jury; .the suit/for'this amount -being-,based upon a--written guarantée directed¡ to -the Higgins-Babcock Co. and-executed by Elliot.

, Error was ¡prosecuted and Elliott /charged that the. lower (court erred in admitting'oral evidence ■ of/conversations, the subject matter of : which;-was the. written guarantee. The*.Company-, declared, goods were- delivered under-the authority-of the guarantee-for payment incase -of default; The ..Court of Appeals held:-

-As. afhasis.fof .competency bf.'said- oral , evidence theicount /apparently: .relied upon, the following language contained Jn the: -gu*r~ 'i antee ¡ ‘‘In line, -.with bur .conversation :báid .in ^ .you^:,.'officé2;witbsMr¿,t;'9redn,-; Mr. «Hjetíktér ;'¿nd ii-:-jilr;i Aa;'n€trgeVeyá| ^y^Aaíujiái'lWíb^to&adyjSe, t :th»t,i;T will. guarantee tpáymeb’t (of/Carreut •sHp-merits,” etc.' ‘ ‘ ' "''-

v Attorneys—Harvey E. ’ Elliot for Elliot; Green and Gallup for Company; all of Cleveland.

•2. Under our. 'statute no recovery can .be had upon a yerbal agreement to pay the debt of another, and yet when the court admitted said testimony there was incorporated into the evidence a conversation constituting a verbal promise to pay the , debt, default', or miscarriage of another. ,■ -

<¡■3. It clearly appears that the conversation which was admitted substatially varies the terms, of the written instrument, which in and of itself,- without the' effect- of the statute of frauds, is contrary to the rules of evidence.

" 4. It is conclusive that the court below interpreted the written guarantee of Elliott with the aid of testimony relating to conversation "and to- the account against Elliot, admitted as His indebtedness for which the written guarantee was applicable. Judgment reversed and ■cause remanded.  