The agreement on the part of the plaintiff was to wait--in other words, to do nothing. Is the burden of proof on us to show that we did nothing, or on the defendants to show that we did something in contravention of our agreement? On our part, the proof is impossible, as no witness could swear to such a negative; on the other hand, if we did anything, they could easily show it. (1 Phillips' Ev. 195, 198; 4 Barn. &. Adol. 140; 9 Price, 257; 5 Maule & Sel. 211; 1 Barn. & Cress, 150; 3 Barn. & Cress, 242; 1 Term R. 144, 649; 1 Bos. & Pull. 468; 2 Bos. & Pull. 307; 1 Earl 650; 10 Earl 211.)
Even if the argument for the appellants on this point is correct, yet, as they introduced evidence upon the question of forbearance, they gave us the right to do the same, which we did; fully establishing the fact that, though the sale was made within the four months, yet it was done with the assent and at the wish of the appellants.
JUDGES: Mr. Justice Terry delivered the opinion of the Court. Mr. Justice Heydenfeldt concurred.
OPINION
TERRY, Judge
The promise on the part of plaintiff to stay proceedings under his judgment against Richardson, was a condition precedent to the guaranty sued on, and performance on his part should have been alleged and proven, to entitle him to recover against defendants.
This was not done in the opening, and defendant was entitled to a judgment of nonsuit.
The defendant, however, after his motion was denied, introduced evidence which enabled plaintiff to supply the defect in his case, and by so doing, waived the objection. (See Ringgold v. Haven, 1. Cal. 108.)
From the whole record, the right of plaintiff to recover clearly appears; and we will not disturb a judgment, when it is evident that a new trial must be attended with the same result.
The judgment it affirmed with costs.