
    No. 2958
    Second Circuit
    GRAHAM GLASS CO. v. DYER
    (March 12, 1929. Opinion and Decree.)
    Crain, Jackson and Johnston, of Shreveport, attorneys for plaintiff, appellee.
    Philip H. Mecom, of Shreveport, attorney for defendant, appellant.
   STATEMENT OF THE CASE.

REYNOLDS, J.

Plaintiff, Graham Glass Company, sued defendant, F. L. Dyer, as guarantor of J. M. Blakely, to recover a balance of $936.05 owing by Blakely to the plaintiff upon an open account. The defendant filed what was, in effect, a general denial. On trial he offered evidence tending to prove that he had been released from his guaranty by the plaintiff. The evidence was objected to by plaintiff and admitted subject to the objection and apparently disregarded by the court in rendering judgment. The judgment was in favor of the plaintiff and the defendant appealed.

OPINION.

The defendant, in brief, concedes that under the pleadings and the evidence not objected to the judgment is correct, but contends that the cause should be remanded to the trial court to enable him to amend his answer and set up the defence sought to be established by the evidence objected to.

So that the only question before the court is whether .the cause should be remanded for this purpose.

The defence that the defendant was released from his obligation by the plaintiff is contrary to and destructive of that set up in his answer, which was, in effect, that he had not contracted the' obligation. He was aware of this defence before he filed his answer and yet did not plead it, nor did he ask permission of the trial court to amend his answer so as to plead the defence on the evidence offered in support of it being objected to.

The defence of release rests upon alleged conversation over the telephone between defendant and an agent of plaintiff and the agent positively denies the alleged release.

Admittedly the judgment is correct under the pleadings and the evidence on which it is based and accordingly it is affirmed.  