
    O. C. Wyman and others vs. John Erickson.
    May 22, 1886.
    Yerdict considered to be demonstrably erroneous.
    The plaintiffs brought this action upon four notes made by the defendant, amounting in all to $7,505, with interest at the rate of ten per cent, per annum from January 1, 1878, and upon an open account amounting to $993, and dated August 2,1884. The defendant admitted the correctness of the notes and the account, and, to prove payment, introduced evidence tending to show that on June 18,1884, he gave the plaintiffs his note for $3,500, due October 1, 1884, and secured by certain land notes, and about August 1,1884, transferred to them a note for $4,000, dated July 23,1884, and secured by mortgage, all which were received by the plaintiffs in payment, and with the understanding and agreement on the part of the plaintiffs to repay to the defendant $1,000 when the $4,000 note and mortgage were sold. No other evidence of payment was offered. The action was tried in the district court for Clay county, before Baxter, J., and a jury, and defendant had a verdict. Plaintiffs appeal from an order refusing a new trial.
    
      Wilson, Ball é Wallin and Smith é Reed, for appellants.
    
      O. Mosness, for respondent.
   By the Court.

The action is to recover upon an account for goods sold, and upon several promissory notes of the defendant. The de-fence is payment. Allowing to the defendant the utmost that can be reasonably claimed from the evidence, it is clear, as a matter of mathematical calculation, that the verdict in favor of the defendant is erroneous to the extent, speaking indefinitely, of about a thousand dollars. There is nothing in the point that the appellant cannot be heard to complain of this error because no exception was taken to language in the charge of the court which may possibly have misled the jury to understand that the undisputed account of $994.68 need not be considered by them.

Order reversed, and a new trial awarded.  