82 Iowa 416 | Iowa | 1891
The notes upon which the action of the plaintiff is founded are for the sum of live hundred dollars each, dated January 29, 1883, made by the defendant, and payable to the plaintiff one year after date. The amount alleged to be due thereon is the sum of one thousand and twenty' dollars and twenty cents. There is no controversy in regard to them. The counterclaim of the defendant is founded upon a promissory note made by the plaintiff to the defendant for the sum of six hundred dollars, dated September 2, 1882, and payable three years after date. The plaintiff admits the making of the note, but alleges that the total consideration therefor did not exceed the sum of fifty dollars ; that at the time it was given the plaintiff was engaged in the business of selling intoxicating liquors in Fayette county in violation of law ; that the n'ote and a mortgage which purported to secure the note were given to the defendant for the purpose of aiding the plaintiff to carry on said business in discouraging, retarding and preventing suits and prosecutions on account of the illegal nature of the business. The defendant denies these claims of the plaintiff, and contends that the note was given by the plaintiff in pursuance of an agreement to pay the defendant for a certain interest in his fatter’s estate, which he had relinquished. The court found in favor of the defendant for the full amount of his note against the plaintiff.
1. The parties to the action are brothers. It appears that their father died intestate about the year
The defendant was permitted, against the objections of the plaintiff, to testify to an agreement had between himself and his mother, who was dead at the time the testimony ■ was given, by virtue of which he claims he relinquished his interest in his father’s estate. The substance of the testimony so given is ■ that the plaintiff and another brother named should have the real estate left by the father, excepting a portion to be reserved as a homestead for the mother; that the defendant should quitclaim his interest to her, and that he should receive what was right in the end. The ground of objection to this testimony was that it was incompetent, under section 3639 of the Code. That provides that “no party to any action or proceeding
II. P. H. Cabalan was administrator of the estate •of the father. He was produced as a witness for the
III. The appellant complains of the refusal of the district court to grant him a new trial on the ground of
We conclude that the showing is not sufficient to authorize us to interfere with the ruling of the district court. Its judgment is, therefore, affirmed.