Van Dusen v. Parley, 40 Iowa 70

Van Dusen v. Parley

40 Iowa 70 | Iowa | 1874

Cole, J.

I. As to the second count, it is clear that the contract alleged in it was without consideration, because the 1. contract• tíonSi-dpromis-sory note. defendant, at the time he made the alleged contract> which was after the maturity of the note, owed the full amount of interest he paid, and hence the consideration for the amount paid was fully exhausted by the interest due, and left nothing to feed the promise for the extension of time on the note. Tomlinson v. Smith et al., 2 Iowa, 39; Pomeroy & Co. v. Parmlee, 9 Iowa, 140; The State ex rel., etc., v. The Gity of Davenport, 12 Iowa, 336, and other Iowa cases.

II. As to the third count, it is. equally clear that the rule excluding parol evidence which tends to vary the terms of a 2. evidence when parol may vary strument. written instrument, has no application where the . . 1 written instrument, by reason of accident or mistake, does not contain the contract of the parties. And under our system of pleading, which allows equitable defenses to be pleaded in law actions, the fact of such accident 3. practice : witten ¿- strument. or mistake may be set up, proved, and made available as a defense, without in the first place having a formal reformation of the instrument, and then its enforcement as reformed. The whole remedy is administered at once, and in one judgment. It was error, therefore, to sustain the demurrer to this count.

REVERSED.