Newton v. Sheldon

47 Iowa 696

• Court: Supreme Court of Iowa
• Decided: December 10, 1878
• Status: Published

Opinion

Beck, J.

The questions in this case are exclusively of facts, to be determined upon the testimony. A brief consideration will be sufficient to dispose of them.

I. The strong preponderance of evidence establishes the facts to be that intoxicating liquors constituted no part of the consideration for which the note was given. It is also established, by evidence quite as satisfactory, that plaintiff did upon the purchase of the property bind himself to pay the note, which the mortgage is given to secure.

II. There may be some doubt upon the questions involving the credits which plaintiff claims should be allowed upon the note, but we think he fails to support his claim by a preponderance of testimony. Plaintiff’s own evidence is to the effect that the person of whom he purchased the property, the mortgagor, informedhim that such payment had been made. Certain papers or receipts were given to the mortgagor by defendant. Plaintiff also testifies that defendant promised to credit the amount on the note. But defendant testifies that no such promise was made, and that he only offered to credit the amount when it should be allowed as a claim against his intestate’s estate. He is supported by another witness who testifies that the receipts so recited the fac^. The receipts are not before us. The abstract does not present the testimony on this branch of the case clearly; it certainly fails to show that plaintiff established this claim as to these credits by a preponderance of the testimony.

Aeeikmed.