32 Iowa 142 | Iowa | 1871
I. The plaintiff introduced in evidence the two notes sued upon, and rested. The defendants then offered testimony tending to show a mistake, in this, to wit: that, by the terms of the settlement of the partnership accounts between Bishop and Howe, the amount due Bishop was but $500, for which sum he gave his note, since paid, and also gave the notes sued on; and that the same
II. Tbe testimony is without conflict as to tbe terms of tbe settlement. It is also -plain, by a computation upon tbe basis of tbe terms, that Howe only owed Bisbop $500. Tbe testimony also shows that these notes were given in addition to that sum, and that at tbe time - tbe defendant Howe insisted that they ought not be given, as Bishop was not entitled to more than tbe $500. Bisbop insisted that tbe $700 was due bim, by tbe terms of settlement, and said to Howe, “ if you will sign these notes and there is any mistake I will rectify it.” Thereupon Howe signed tbe notes. Bisbop was mistaken as to tbe amount due, and pursuant to that mistake, tbe notes were given; bis promise to rectify ought alone to bind bim. Or, if it should be more satisfactory to tbe plaintiff, tbe proposition may with propriety and verity be stated, that tbe notes were without consideration. Tbe proof shows that Bisbop still is tbe real owner of tbe notes. Tbe plaintiff therefore ought not to recover.
Affirmed.