Dat, J.
1. EVIDENCE: title bond : mistake description. I. The evidence satisfies us quite clearly that there was a mistake in the title bond. Indeed we think that the title bond itself furnished evidence of the mistake. On the-8th day of May, 1860, the plaintiff obtained a conveyance from Joseph Spilman for a tract of ]ari¿ jn the form of a rectangle, four chains in length from east to west, and two and one-half chains in width from north to south. On the same day the plaintiff conveyed to John Haug a strip seven rods wide from east to west out of said premises, retaining a strip two and one-half rods wide on the west side, and six and one-half rods wide on the east side. Haug conveyed these premises to John T. Galby, by deed, dated November 8th, 1863. On the 1st day of September, 1866, Galby conveyed a strip forty feet wide from the west side of the premises conveyed to him, to Sigamond Shaffenful, and on the 20th day of September, 1869, Shaffenful conveyed said forty feet strip to the plaintiff. In the title bond from the plaintiff to the defendant the plaintiff agrees to convey first, this forty feet strip specifically described by metes and bounds, and then the whole tract purchased from Joseph Spilman, with .the exception of a strip nyiety-two feet wide from the east side. Now, if the plaintiff intended to contract to sell the whole tract, with the exception of ninety-two feet off of the east side, it is incredible that he should first specifically describe the forty feet, and then insert a general description including the whole tract and embracing the forty feet. Besides, it clearly appears that the *652plaintiff did not own the Galby lot, that the defendant knew that fact, and that the plaintiff did not propose to contract to sell it. Besides the plaintiff testifies that the conversation was conducted in German, and the title bond was written and read over to him in English; that he cannot read English, and it is difficult for him to understand it; and that Myer, who drew the instrument, made a mistake in the description. The plaintiff is corroborated by other evidence. We think the mistake in the title bond is clearly established.
2. COURT : discretion of: testimony to correct mistake. II. The contract for the sale and conveyance of the land was made January 5th, 1872. The amendment to the petition alleging a mistake in the instrument and asking a cor-section of it, was filed August 6th, 1880. The defendant filed the amendment to his answer, pleading the statute of limitations, on the 20th day of October, 1881, after all the testimony in the case had been taken by deposition, and when the cause was called for trial. The plaintiff in his deposition, on file in the case, testified': “The first time I knew that the Galby lot was included in the contract was about two, or two and a half years after the contract was made.” Upon this testimony the court announced a decision against the plaintiff, holding that more than five years had elapsed since the discovery of the mistake, and that the relief asked was barred- by the statute of limitations. Before this decision was entered the attorney for plaintiff asked to be allowed to put the plaintiff' upon the stand as a witness, stating that he was not aware until after the commencement of this trial that the depositions of plaintiff' showed that he discovered the mistake some two and a half -years after, the contract was made, and that said deposition did not state the fact truly, nor as plaintiff had stated it to him 'in his first consultation, nor as stated in his petition. ■ To the allowance of this the defendant objected, for the reason that when the amendment to the answer was filed, plaintiff’s attorney Had announced that he was ready for trial, and the testimony had been taken *653in writing, and that plaintiff ought not to be allowed to contradict his former testimony, and that the cause had been submitted and a decision rendered. The court overruled the objection, and granted the plaintiff’s attorney until the next day, October 21st, to produce and examine the plaintiff. On the 21st-day of*.October, the plaintiff was offered as a witness. .The defendant again objected, for the reason that it was too late'; that the testimony had been ordered to be taken in writing. The court overruled the objection, and the plaintiff was sworn and testified. It was within the discretion of the court, under the circumstances of this case, to permit the plaintiff to be called as a witness. No abuse of discretion appears. The court might have directed that the additional testimony should be taken in the form of depositions, but this was a matter in the discretion of the court. Code, § 2742.
3. STATUTE of limitations : discovery of mistake : evidence. III. The appellant insists that the plaintiff discovered the mistake more than five years before the filing of the amendment to his petition asking relief on the ground of mistake. true the plaintiff in his deposition testifies that the first time he knew that the G-alby lot was included in the contract was about two or two and a half years after the contract was made. In this deposition he does not fix any date when he learned such ■fact, but speaks simply of the time which had intervened since the contract was made. It is familiar to all how liable to error such testimony is. In his subsequent testimony he fixes the date when he learned of the mistake about August 1876, and fortifies his statement by a reference'to the circumstances under which the knowledge was acquired. He testifies that he learned the fact from the notice of sheriff’s sale of the premises, which notice was produced and is dated August 25th, 1876. This testimony is not in any manner contradicted. The court did not err in'finding that the mistake was not discovered more' than five years before the filing of the amended petition.
Affirmed.