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Opinion Per Curiam.

The language of the first bond, “he or either or any of them,” as well as the language of the second bond, “he, they and it,” is so broad and comprehensive that it clearly includes not only the firm, but each member thereof as individuals, and it is quite manifest that the parties must have so understood it; at least the law presumes such understanding in the face of this simple and ordinary every-day language.

The very foundations of business make it obligatory that all parties shall fully and faithfully carry out the terms and conditions of each contract according to its spirit and purpose as shown by the four corners of the contract.

The most superficial reading of these contracts clearly shows the wives of these partners were simply pledging certain interests in property in order that the bank might extend future credits to their husbands who were conducting the business.

The mere fact that one of the husbands died, dissolving by law the partnership, does not, in face of the language especially written into the formal contracts above quoted, in any wise lessen the liabilities of all parties to the bond. The construction placed by the court of appeals on these contracts absolutely ignores or destroys the language above quoted, and in fact the principal obligations created by the bonds.

The parties made their own contracts. It is neither the right nor privilege of this court to make new ones for them. They took the benefits thereunder and they must now assume the burdens.

Opinion Per Curiam.

It is wholly immaterial as to whether the liability to the bank was incurred before the partnership was dissolved, or after. Partnership names mean nothing Business may be conducted by an individual under a partnership name that is founded on the name of a deceased partner. The liability of the husbands in this case, who were parties to the bond, was not merely joint, but joint and several, and under the terms of the suretyship contracts their liability and the liability of the sureties was a continuing liability. It is clear that future credit by the bank to enable the Houtzers to continue the business was the chief purpose of the making of these contracts, and that the extension of credits was thereby effected.

It is the duty of courts to look to the substance of things and hold the parties responsible according to the actual facts and conditions of their written obligations and what was done pursuant thereto.

There is nothing for this court to interpret. The language is plain and clear, and effect must be given to all of it as written in the bond.

Therefore, the judgment of the court of appeals is reversed and judgment rendered for plaintiff in

error.

Judgment reversed and judgment for plaintiff in error.

WANAMAKER, NEWMAN, Jones, Matthias and JOHNSON, JJ., concur.

Nichols, C. J., not participating.

Opinion Per Curiam.

THE STATE OF OHIO V. LOPA.

Evidence Impeaching or cumulative in character -- Testimony as

to sound Question of prejudicial error Court procedure Death from assault - Criminal law.

(No. 15468 — Decided May 29, 1917.)

ERROR to the Court of Appeals of Allen county.

Mr. John L. Cable, prosecuting attorney, and Mr. O. O. Barr, for plaintiff in error.

Mr. Joel G. Hersh and Mr. W. W. Sutton, for defendant in error.

BY THE COURT. The defendant in error, Nick Lopa, was tried and convicted of murder in the second degree. The court of appeals reversed the conviction on two grounds: first, that a new trial should have been awarded by the trial court because of newly discovered evidence; and, second, for the refusal to rule from the jury certain evidence given by Estella Lawler, a witness for the state. The state prosecutes error to this court.

The testimony of the state tended to show that at the time of the assault there were two persons present in the room with the defendant, viz., James Patton, the deceased, and a woman by the name of O'Reagan; that after Lopa's assault upon Patton, Patton left the house and did not thereafter return. The defendant testified in his own defense, claiming that Patton after leaving the house returned and made an assault upon him.

Opinion Per Curiam.

After conviction, upon a motion for a new trial, in support of the claim of newly discovered evidence, the defendant offered the affidavits of two witnesses tending to support the claim of the defendant and to contradict the testimony of the O'Reagan woman, and to the effect that after Patton had left Lopa's house he returned thereto, as testified to by the defendant.

It is manifest that this newly discovered evidence proffered on the motion was in its nature both impeaching and cumulative. It was the former in that it tended to impeach the statements of the O'Reagan woman, and cumulative in that it supported the testimony of the defendant upon the issue whether Patton returned to the defendant's house as claimed.

The granting of a motion for a new trial upon the ground named is necessarily committed to the wise discretion of the court, and a court of error cannot reverse unless there has been a gross abuse of that discretion. And whether that discretion has been abused must be disclosed from the entire record. The rule of procedure in this regard has been frequently announced by this court. The new testimony proffered must neither be impeaching nor cumulative in character. Were the rule otherwise the defendant could often easily avail himself of a new trial upon the ground claimed. Unless the trial court or court of error, in view of the testimony presented to the court and jury, finds that there is a strong probability that the newly discovered evidence will result in a different verdict, a new trial should be refused.

Opinion Per Curiam.

In this case were the evidence proffered not impeaching and cumulative in character, we hold that the evidence tendered in the affidavits would probably not change the result, especially in view of the written confession made by the defendant.

The ground of newly discovered evidence was also supported by the affidavit of one Dr. Stafford, which purported to give a statement made by Patton just previous to his death. It is sufficient to say

that Stafford was called as a witness on behalf of the state, and was cross-examined by the defendant's counsel, who knew that Stafford was with Patton just prior to his death. Counsel for defendant had full opportunity then to develop, by way of cross-examination, the fact which is now claimed to be material for the defendant, and since that was not done, counsel cannot now claim the privilege of future development.

Estella Lawler, a witness for the state, testified that she was present at Lopa's house just before the assault; that Lopa left the room where she

She was then asked this question: "Q. And what did he do? A. I could not swear what he did, but I heard something in this room, — this adjoining room that he left, like somebody would be whetting something of some kind or grinding it.” The witness later said that when Lopa returned she noticed a knife in his right hip pocket.

The court of appeals held the answer quoted to be prejudicial error, upon authority of Crowell v. Western Reserve Bank, 3 Ohio St., 406. The

was.

a

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