63 Iowa 560 | Iowa | 1884
The plaintiff, Sophia A. Keyes, is the widow of John Keyes, deceased, and guardian of her daughter, Cornia P. Keyes. The note in suit was given to Sophia A. Keyes, as such guardian, for a note previously executed by the defendant, Beesman, to John Keyes. It appears that an action was brought on the original note by the administrator of John Keyes. Beesman claimed at that time that there was a shortage in the land, and he was advised that that was the proper time to set up such fact, if he intended to. He did not, however, set it up, but settled the suit by giving the note now sued on, and gained additional time. "Whether he was actuated in part by the idea that his own testimony would be inadmissible in that action, but would not be in an action that might be brought upon the new note, does not appear, nor is it material. Whether we regard the defense as a plea of partial failure of consideration, or of a mistake, we have to say that we think that it cannot be sustained. Beesman went into the transaction with his eyes open. It is true, he claims that he did not know for a certainty what the quantity of the land was. But, as he made a new note to a new party, and stipulated for additional time, it was his business to know. More than five years had elapsed since the first note was given, and the matter of shortage had been brought expressly to his attention. Under the circumstances shown, it appears to ns that we must regard the consideration as the surrender of the original note, and without any such mistake as entitles him to equitable relief. Beesman’s position is that he gave the note with the intention of not paying it in full; and with the intention of defending against it if sued upon it. But the
We will say further that we are inclined to think that the evidence fails to show that there was any shortage. But, having reached a conclusion upon other ground, which is decisive of the case, it is not necessary to go into this question.
Affirmed.
