Jackson v. Benson
7 N.W. 97
Iowa
1880
Check Treatment
Seevers, J.

The note sued on was executed by Reed Benson as principal and the defendant as surety. Reed Bеnson died before the commencement of this action. The consideration was the sale and conveyance of ‍​​‌​​‌​​‌‌‌​​​​‌‌​‌‌‌‌‌​​‌‌​​​‌‌‌​​‌​​​‌‌‌​‌‌‌‌‌‍certain real estatе by the plaintiff to Reed Benson. The defendant pleaded payment, and that the land was encumbered at the time it was conveyed, which encumbrancеs had been paid by Reed *655Benson. He also clаimed the estate of said Benson was solvent; that thе note had not been filed as a claim against the estate, which had been fully settled, the administrator discharged and the heirs were insolvent. He further claimed ‍​​‌​​‌​​‌‌‌​​​​‌‌​‌‌‌‌‌​​‌‌​​​‌‌‌​​‌​​​‌‌‌​‌‌‌‌‌‍the plaintiff had represented the note had been paid, and but for this he would have presented thе note against the estate, or seen that it was dоne. Several errors are assigned, but only two argued; these alone will be considered.

1. evidence: witness: doeci. I. The convеyance executed by the plaintiff was not introduсed in evidence, and the defendant sought to prоve it contained covenants of warranty, but upоn objection being made the evidence was еxcluded, as we think rightly, because of the well established rule that the contents of a writing cannot be proved by parol unless the ‍​​‌​​‌​​‌‌‌​​​​‌‌​‌‌‌‌‌​​‌‌​​​‌‌‌​​‌​​​‌‌‌​‌‌‌‌‌‍absence of the writing has bеen sufficiently accounted for. This is not even clаimed to have been done. Besides this, the witnesses were in substance asked whether the conveyance was a warranty deed or not. The contents being shown, this was a question of law as to which the opiniоn of a witness was improper and incompetеnt.

The only point sought to be established by the evidenсe was either conceded or taken for granted by the court, for the amount shown to the satisfaction of the court to have been paid by Reеd Benson ‍​​‌​​‌​​‌‌‌​​​​‌‌​‌‌‌‌‌​​‌‌​​​‌‌‌​​‌​​​‌‌‌​‌‌‌‌‌‍in discharge of encumbrances on the real estate was allowed as a credit on the note. Conceding, therefore, the evidence to have been improperly excluded, the .еrror was not prejudicial.

2. PBOMISSOB.T makerYsdoceased: surety, II. The plaintiff was not bound tо inform the defendant the note was unpaid. Nor did his failurе to present it as a claim against the estate of Reed Benson discharge ° ° defendant. It was the duty оf the latter to j^yg ‍​​‌​​‌​​‌‌‌​​​​‌‌​‌‌‌‌‌​​‌‌​​​‌‌‌​​‌​​​‌‌‌​‌‌‌‌‌‍pai¿ the -^g ^g desired to or could рrotect himself by filing it as a claim against the estatе. As to whether the plaintiff represented the notе had been paid there was a'direct confliсt in the evidence. We are unable *656to say there is a preponderance, even, in favor of the defendant, and, as the court has found otherwise, we cannot interfere.

Aeeirmed.