
    Officer v. Howe et al.
    
    Evidence! parol to vary written contracts. Parol evidence is admissible in an action upon a note for the purpose of showing fraud, accident or mistake, even though the effect of such evidence is to contradict or vary the terms of the instrument itself.
    
      Appeal from, Monroe District Court.
    
    Thursday, July 27.
    Ordinary action upon two promissory notes for $100 each, made by defendants (Howe as principal and Chase as surety) to one Bishop, and by him indorsed to plaintiff, who is' cashier of a bank. The answer avers that the notes were given on settlement of partnership accounts, whereon Howe owed Bishop $500, and intended to give notes for that amount, but, through mistake, gave in excess the two notes sued on; that they were given without consideration; and that Bishop was still the owner of the notes and the real party in interest. Trial to the court; judgment for defendants; the plaintiff appeals.
    
      Anderson, As Stuart Bros, for the appellant.
    
      Perry As Townsend, for the appellee.
   Cole, J.

I. The plaintiff introduced in evidence the two notes sued upon, and rested. The defendants then offered testimony tending to show a mistake, in this, to wit: that, by the terms of the settlement of the partnership accounts between Bishop and Howe, the amount due Bishop was but $500, for which sum he gave his note, since paid, and also gave the notes sued on; and that the same were given under a claim by Bisbop that $700 was tbe amount due bim by the terms of settlement. To tbis evidence tbe plaintiff objected as irrelevant, incompetent, not tending to show a mistake, and contradicting written instruments. Tbe objections were overruled, tbe evidence admitted, and tbe plaintiff excepted. Tbis is assigned as error. Tbe rule is too well settled to admit of doubt, or to require tbe citation of authorities, that, where fraud, accident or mistake is alleged respecting a written instrument, that parol evidence is competent to show such fraud, accident or mistake, although it may contradict, alter, or vary tbe terms of tbe instrument itself. If tbis were not so, a written instrument might effectuate tbe grossest injustice in tbe face of tbe clearest proof of its invalidity. "Whether tbe evidence tended to show a mistake we will now inquire.

II. Tbe testimony is without conflict as to tbe terms of tbe settlement. It is also -plain, by a computation upon tbe basis of tbe terms, that Howe only owed Bisbop $500. Tbe testimony also shows that these notes were given in addition to that sum, and that at tbe time - tbe defendant Howe insisted that they ought not be given, as Bishop was not entitled to more than tbe $500. Bisbop insisted that tbe $700 was due bim, by tbe terms of settlement, and said to Howe, “ if you will sign these notes and there is any mistake I will rectify it.” Thereupon Howe signed tbe notes. Bisbop was mistaken as to tbe amount due, and pursuant to that mistake, tbe notes were given; bis promise to rectify ought alone to bind bim. Or, if it should be more satisfactory to tbe plaintiff, tbe proposition may with propriety and verity be stated, that tbe notes were without consideration. Tbe proof shows that Bisbop still is tbe real owner of tbe notes. Tbe plaintiff therefore ought not to recover.

Affirmed.  