45 Iowa 102 | Iowa | 1876
I. On the trial of the ease the plaintiffs having the note in their possession introduced it in evidence and rested. In order to defeat recovery thereon, the defendants sought to establish, first, that the note was in fact the property of Roup, the payee, and second, to show by the testimony of appellants that it was paid to Williams in his lifetime. If the evidence was not sufficient to establish the first proposition, the second could not be shown by the testimony of the defendants. Code, Sec. 3639. It is conceded that such testimony would be in the nature of a personal transaction between the witnesses and the deceased.
We do not concur in the proposition of appellants’ counsel,
But, as the trial was to the court, unless the finding as to the agency and ownership is so manifestly against the evidence as to demand a reversal on this ground, there was no error in excluding the evidence of Brown.
We have each carefully examined the evidence on this question, and while we may say we are of opinion that as it appears to us the finding might well have been otherwise, yet, under the rule well established here, we cannot interfere. We must treat the finding the same as though it were the special verdict of a jury on that question.
It is unnecessary to detail the evidence here.
Affirmed.