
    Banta v. Martin.
    1. Where, at the time a general charge is given, a party states his objections to separate specified parts of it, and the court fails to modify the charge, it is sufiicient to set forth in the bill of exceptions the parts complained of, followed by the statement that the party excepts to each and all the parts so specified; and this is not inconsistent with Adams v. The State, 25 Ohio St. 584
    2. In an action against a stranger who indorsed in blank an overdue promissory note, it was alleged that, on April 7, 1873, he guaranteed the payment of the note, in consideration that the payee would extend the time of payment “until next spring.” Evidence was received without objection, tending to show that the agreement was for an extension of time for one year. After the cause had been argued and submitted, the court, in the general charge, said to the jury that they must disregard such evidence. Held, that the case "was not one of failure of proof, but of variance, which did not appear to have prejudiced the defendant, and hence the case was within section 131 and not section 133 of the Civil Code. Bev. Stats. §§ 5294-5296.
    Error to tbe District Court of Huron county.
    Clary & Co., a firm consisting of Gr. W. Clary and Seymour B. Martin, in 1871, executed and delivered three promissory notes to Isaac Banta, payable to him or order, each due one year after date, the whole amounting to $2,200. Several payments were made on the notes in 1871, 1872 and 1873, leaving a balance of $1,478 and interest. In 1874, Clary & Co. became bankrupts, and subsequently both members of the firm died insolvent.
    On April 7, 1873, Robert Gr. Martin wrote his name in blank on the back of each of the notes, and in 1875, Banta brought suit against him in the court of common pleas of Huron county, seeking to recover a judgment for the balance due on the notes, upon the ground that he was a guarantor. An issue of fact was joined, trial had, and judgment rendered in favor of Martin, which judgment was afiinned in the district court, and this petition was filed by Banta in this court to reverse the judgment of both courts.
    In the petition it is alleged, in substance, that on April 7, 1873, the plaintiff, Banta, being about to bring suit on the notes, the defendant, Robert G. Martin, in consideration that the plaintiff would extend the time of payment of the notes until the next spring, agreed that he would, and he then did guarantee the payment of the notes by indorsing his name thereon, and in consideration of such guaranty, the plaintiff then agreed to and did extend the time of payment of said notes for the< time stated.
    Evidence was given, without objection, tending to show that Seymour B. Martin applied to Banta for an extension of one year in the time of payment of the notes, and proposed that his brother, Robert G. Martin, should guarantee the payment of the notes in consideration of such extension; that this was communicated by Seymour B. Martin to Robert G. Martin, in the presence of Banta; that Robert G. Martin thereupon indorsed his name in blank on the back of each of the notes, in pursuance of the arrangement; and that, accordingly, Banta extended the time of payment of the notes for one year.
    The whole charge to the jury is not set forth in the record. After the general charge was given, the plaintiff objected to certain parts of it, which are set forth in the bill of exceptions, but the court refused to modify such parts, and the plaintiff excepted in this form: “To each and all of which charges and instructions herein above stated, the plaintiff then and there excepted.” ' Among the matters so excepted to, was the statement, in substance, that the contract was, in effect, for an extension until March 1, 1871, and that, unless the proof was in accordance with that allegation, there could be no recovery.
    
      G. T. Stewart, for plaintiff in error.
    
      Chas. M. Pennewell, for defendant in error.
   Okey, O. J.

Two questions are involved in the determination of this case : first, as to the form of exception to the charge, and secondly, whether the charge, in the particular set forth, was warranted.

1. In Adams v. State, 25 Ohio St. 584, it was held that a reviewing court is not bound to notice an exception to any particular part or- parts of a general charge, unless the attention of the court delivering the charge was, at the time, directed specifically to the part or parts claimed to be erroneous, and this fact appear by bill of exception. That case has been repeatedly approved (Taylor v. Leith, 26 Ohio St. 428; Railroad Co. v. Strader, 29 Ohio St. 448; Railway v. Probst, Fitzgerald v. Cross, 30 Ohio St. 104, 450; Berry v. State, 31 Ohio St. 219; Insurance Co. v. Tobin, 32 Ohio St. 77; McKee v. Hamilton, Powers v. Railway Co., Insurance Co. v. McGookey, 33 Ohio St. 7, 229, 555; and see Lincoln v. Claflin, 7 Wall. 132; Magee v. Badger, 34 N. Y. 247; Brown v. Kentfield, 50 Cal. 131), and we are well satisfied with it; but we see no reason for applying that rule in this case. On the contrary, where, at the time a general charge is given, a party states to the court his objections to separate, distinct parts of it, and the court fails to modify the charge, it is sufficient to set forth in the bill of exceptions the parts of which he complains, and state, as here, that he excepts to each and all the parts so set forth, and it is unnecessary to note an exception at the end of each of such parts.

2. That Robert Gr. Martin, by assenting to an agreement between S. B. Martin and Banta, for an extension of time for payment of the notes and indorsing his name thereon, would render himself liable for their payment, admits of no doubt; and the agreement would be equally binding whether such extension be in terms for a reasonable time, or until next spring, or for a year. Calkins v. Chandler, 36 Mich. 320; cf. Gower v. Stewart, 40 Mich. 747; Seymour v. Mickey, 15 Ohio St. 551; 1 Rev. Stats. 821; Oldershaw v. King, 2 H. & N. 517; Pratt v. Hedden, 121 Mass. 116; Brandt on Suretyship, § 8; Leake on Con. 622 ; Wald’s Pollock on Con. 166; Roseoe’s N. P. Ev. (14th ed.) 432. On the other hand, it is quite clear that Robert Gr. Martin is not liable unless he had knowledge of an agreement for such extension, and placed his signature .on the notes in furtherance of such agreement. Ib.

Upon the question whether there was an agreement for extension of time assented to by Robert Gr. Martin, the evidence is in conflict, and we express no opinion as to its weight or preponderance. We are of opinion that the charge of the court, in the particular stated, was unwarranted, and that this calls for a reversal of the judgment. The court, as we have seen, ehai'ged in effect that the extension of time, according to the agreement set forth in the petition, was until March 1, 1874. Assuming, without deciding, that this was correct, evidence of an agreement for such extension for one year, made April 7, 1873, was offered and received without objection, as we have also seen. In this posture of the case — the evidence and arguments of counsel having been heard — the court, in effect, arrested the evidence from the jury. But there is a marked difference between a case where the allegation of a claim, to which the proof is directed, is unproved in its general scope and meaning, and not merely in some particular, and a case in which the variance between the proof and such allegation does not appear to have misled the defendant. Civil Code, §§ 131-133 ; Rev. Stats. §§ 5294-5296. The variance here was of the latter class, while the court treated it as of the former.

Judgment reversed.  