Robinson, J.
I. October 28, 1886, the defendants entered into a written agreement with one Poyer for the sale of certain land therein described, and at the same time received one hundred dollars as part payment for the land. A few weeks later the remainder of the purchase price was paid, and at the request of Poyer a deed for the land was executed and delivered to plaintiff. Some question is raised as to whether Poyer or plaintiff was the real principal in the transactions with defendants, but, as it is not material to the determination of the case, it will not be considered.
' aence to suppoit -rei io. It is claimed by the plaintiff that by mistake the entire cash consideration of the purchase, amounting to $3,628.86, was paid when the deed was delivered, and that the one hundred dollars wpen contract was made was not deducted, and that he is now the owner of the claim for this amount. Defendants deny these claims, and insist that only $3,528.86 was paid at the delivery "of the deed. The evidence in regard to the amount actually [116]*116paid is conflicting, and we cannot say that the verdict of the jury as to this is not sustained by the evidence.
2 mistake • toimRba1ncint whoYiabie. II. Appellant insists that, although the overpayment be established, yet the evidence fails to show that appellant is liable for it. But in our opinion there is evidence sufficient to show that appellant is liable for the amount of money actually paid at the time in controversy. It is not shown who was the owner of the land sold by defendants. Both join in all the covenants of the contract of sale and of the deed. The contract required the payment of money portions of the considerations “to said parties of the first part, A. J. Leffingwell and Fannie M. Leffingwell.” The deed recites that “A. J. Leffingwell and Fannie M. Leffingwell, * * * in consideration of the sum of five thousand eight hundred and thirty-three dollars in hand paid,” do sell the land described, and contains the usual covenants of title and warranty; and both grantors relinquish their “right of dower.” The money was paid at the home of defendants, and appellant was there and present during at least a part of the time when the business was being done. After the money was paid it was by directions of appellant placed in a bureau drawer to which she alone carried a key. That evening the defendants together took and counted the money. The evidence seems to show that the day after the money was received she deposited a part of it in bank and loaned a part. Certainly these facts justified the jury in finding that appellant was liable for the money paid when the deed was delivered. It may be that the jury should have found that A. J. Leffingwell was also liable; but as that question is not properly before us, we do not .decide it.
Aeeikmed.
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