58 Iowa 268 | Iowa | 1882
I. The promissory note upon which the action is brought, was executed in 1874 to Mary A. Dennis, in settlement of certain claims against defendant, held by her as the administratrix of the estate of Eli Dennis, deceased. The claims thus settled were balances due upon á mortgage executed in 1854, and upon two promissory notes, one made in Í865, the other in 1866. These- transactions were in the life time of Eli Dennis. The note of 1865 was given in settlement made at that time of a prior claim for money advanced to defendant to purchase a farm, the title of which was held by Dennis, and conevyed to defendant upon the execution of the note.
The defendant in his answer alleges in substance, that he was not indebted to the estate of Dennis when the note in suit was given, that he had in fact overpaid the claims against him, and that the note was given under an agreement made by -the administratrix that if any mistake was made in the settlement it should be corrected. The answer sets out with particularity and at great length, the'transactions between the defendant and the intestate, their relations of friendship and many other matters.
III. The referee in the court below excluded much of the testimony given by the defendant in his own behalf/on the ground that, as it tended to establish personal transactions and
Defendant seeks to set aside tbe settlement of 1865 upon which tbe note of that date was given. If we should regard tbe note as having no greater force than to witness the statement of tbe account of tbe parties at tbe time, we could not, under tbe rules of equity, after tbe great lapse of time, set aside tbe settlement on tbe ground of error or mistake. More than twelve years elapsed between tbe settlement and tbe commencement of tbis action. After laches for so many
It will be observed that defendant seeks to defeat the note on the ground that, at the time of its execution, the payee orally agreed that any mistake made in the settlement upon which the note was given should be corrected, and the amount recoverable upon the note should be determined accordingly. The rule of the law which excludes evidence of contemporaneous parol agreements to vary or contradict written instruments prevails in chancery. The agreement relied upon by defendant cannot, therefore, be shown to defeat the note. But equity will relieve against mistakes and in granting such relief a written contract will be varied and reformed upon pai’ol evidence establishing a mistake of the parties executing it. However1, to establish by parol evidence a mistake, "which will authox-ize a court of eqxxity to vary or reform a wxitteix contract, “ the proof must be such as will strike all minds alike as being unquestionable axid free from reasonable doubt.” The relief will be denied “ wherever the evidence is loose, equivocal or contradictory, or is in its texture open to doubt.” 1 Story’s Eq., section 157.
In our opinion, the evidence before us xxtterly fails to establish a mistake in the settlement upon which the promissory note in suit was given. . It may be said that there is no pretense on the part of defendant that any fraud or concealment was practiced by the persons with whom defendant made the settlement. Defendant does not claim that when he gave the note he was in ignorance of the facts upon which he now x’elies to establish the mistake. It is true that he and
It may be here remarked that the testimony relating to the conversation, controversy, and agreements betweeix the parties at the settlement is conflicting, the statements of defendant and his wife being contradicted by the payee of the ixote and the person acting for her. There are also improbable statements made by defendant, who relies piincipally upon his own evidence to support his defense. One of them is substantially as follows: One of the items of indebtedness, covered by the settlement and included in the note in suit, was an amount due upon the note executed in 1865, upon a settlement then made. Defendant now insists that there were errors and mistakes in that settlement and that he did not owe the amount of the note then given. This note was in the last settlement and the amount of its face made the basis of defendant’s indebtedness thereon. It will be observed that as to the amount found due upon this note, in 1873, defendant alleges that there were two mistakes, one in 1865, and the other at the last settlement. It apppears very improbable that defendant would repeat the alleged mistake, and twice give his note for money he did not owe, and this, too, without any claim that he was ignorant of the facts. This, with other evidence foxxnd in the. record of like character, “ is in its textux’e open to doubt and to apposing presumptions,” and is not sufficient to satisfy the judicial mind
In our opinion the judgment of the Circuit Court ought to be
Affirmed.