
    Snyder v. Harnish, Appellant.
    Argued October 30, 1929'.
    Before Porter, P. J., Trexler, Keller, Linn, Gawthrop, Cunningham and Baldrige, JJ.
    
      January 29, 1930:
    
      Harry W. Petrikin, for appellant.
    
      Robert W. Smith, for appellee.
   Opinion by

Baldbigh, J.,

A rule was granted on a petition to open judgments entered on two notes and to stay executions. The appellant averred that the notes were given at the time he made a purchase of cattle at a public sale; that certain promises were then made to him that extension of time, etc., would be given; and that the appellee failed to fulfill his promises. The depositions taken under the rule granted did not support or even refer to the averments in the petition. The testimony related to the defense relied upon in this court which is, that a new note in the sum of $518 was given by the appellant in payment of the two original notes and that a six months ’ extension of time was granted. The appellee testified that the note of $518 was given, conditioned that he should be able to discount it in bank and that he was unable to do so, and returned the note to the appellant, who accepted it, but that the original notes were never surrendered.

The lower court found as a fact upon sufficient evidence that the note for $518 was not accepted as a payment of the two notes as contended by the appellant. Under the pleadings in this case and the testimony that was adduced, we are convinced that the order made by the lower court in discharging the rule was proper.

Assignment of error is overruled and judgment affirmed.  