28 Iowa 454 | Iowa | 1870
Tbe plaintiff and defendant, with others, were securities of one Lynch upon a promissory note, on wbicb judgment was rendered against them. Tbe other
Upon or prior to the payment of this note by Timber-man, Wolcott executed to him his bond, obligating himself to pay and discharge the judgment, and to hold Timber-man harmless thereon. The consideration expressed in this bond for Wolcott’s undertaking is the note executedby Timberman and the assignment of his interest in the property received of Lynch. The bond is dated February 3d, 1859.
Among the claims received by the parties from Lynch and assigned by Timberman to Wolcott, was a mortgage, executed by W. W. Belknap, securing a note for $666. The note, in the receipt executed by the parties to Lynch, is described as being lost or mislaid, and it was not, therefore, delivered to them, and, in fact, never came into
He claims that the agreement between himself and Timberman, whereby he assumed to pay the judgment, was made under a mutual mistake of fact, in that they both supposed a good title was acquired by them to the Belknap note, and wholly vested in plaintiff by the assignment of defendant. Hé insists that the agreement, for this reason, is voidable, and that he can have relief in equity. He claims that the agreement should be set aside, and Timberman be required to pay one-half the judgment, less the $300 paid to plaintiff, with interest. It is admitted that the $30 realized from the property received of Lynch should be deducted from the judgment in making this estimate. Estimating the amount in this way he claims he should recover $905.70.
It is insisted, that, in case the agreement cannot be wholly set aside, it should be corrected as to the Belknap note, and defendant be required to pay to plaintiff one-half the amount of that note, with interest.
In our view, the transactions between the parties clearly amount to a contract, whereby plaintiff undertook to pay the judgment and release defendant from any loss or liability on account thereof. In consideration of his under
In this view of the case, the contract between the parties cannot be wholly set aside; neither can it be reformed or partially annulled, so far as to permit plaintiff to recover one-half of the amount of the Belknap note. Plaintiff cannot recover of defendant as the vendor of that note, for, as we have seen, he is protected by the terms of the assignment — the sale of the property.
Other questions, raised by the appellant as to the laches of plaintiff, limitation of action under the statute, etc., need not be considered, as the foregoing conclusions are decisive of the case.
The judgment of the General Term, reversing the decision of the District Court, is
Reversed.