
    Francisco Susoni, Plaintiff and Appellee, v. Juan de la Cruz Cubero et al., Defendants and Appellants.
    No. 4368.
    Argued June 5, 1928.
    Decided July 28, 1928.
    
      Luis Toro Cabañas for the appellant. Antonio Lens for the ap-pellee.
   Mr. Justice Wole

delivered the opinion of the court.

G-armendia was under an obligation to pay damages for injuries to the son of Juan de la Cruz Cubero by reason of an automobile accident. He undertook to do so. He took the son to the clinic of Dr. Susoni, was instrumental in compromising the claim for damages at $2,000 paid to Juan de la Cruz Cubero and agreed, besides, to pay the further expenses of the clinic. He paid $500 to Dr. Susoni and some time thereafter went into bankruptcy.

Dr. 'Susoni had a claim for services of $1,685.50. He credited the sum of $500 and requested payment of Juan de la Cruz Cubero for the balance. The latter refused to pay and suit was brought against him and Garmendia. Subsequently the action was discontinued as against Garmendia. At the trial Dr. Susoni offered evidence tending to show that the father as well as Garmendia agreed to be responsible for Dr. Susoni’s bill and the court found in favor of the plaintiff.

Independently of any release made by Dr. Susoni there is strong- evidence tending to show that Cubero agreed to be responsible to tbe former. It was a natural responsibility of tbe father and according to tbe evidence, as believed by tbe judge, Cubero made specific statements to tbe effect that be would be responsible to Dr. Susoni, or words that were tantamount to such an agreement.

As to tbe release by Dr. Susoni, tbe evidence is conflicting. Tbe burden was on tbe defendant to show such a release. There was testimony tending to show that Cubero would not have compromised with Garmendia if be bad not believed that Dr. Susoni was disposed to accept tbe sole responsibility of tbe said Garmendia, but Dr. Susoni denied such statement and there was other evidence to deny it.

Partly because there was other evidence, tbe appellant presents tbe following assignment of error:

“Tbe lower court erred:
“1. — In overruling the motion of the defendant that the rebuttal testimony of attorney Lens be stricken out, inasmuch as rather than rebuttal his testimony was a contradiction of the truth of the testimony of witnesses Cubero and Aviles and yet no foundation for it had been laid.”

Perhaps tbe testimony of attorney Lens was a contradiction of tbe truth of tbe testimony of tbe defendant’s witnesses, but tbe primary purpose of tbe rebuttal evidence was not for tbe purpose of showing that tbe witnesses bad made contrary statements on other occasions, b¿it to give testimony material to the issues in tbe case; in other words,.to show that neither Dr. Susoni nor bis attorney ever agreed to release tbe defendant Cubero, as tbe latter attempted to maintain.

Without tbe testimony of attorney Lens we are convinced that the defendant Cubero failed to malee out a release. Tbe judgment should be affirmed.  