
    Dodge v. Manchester.
    Promissory Note.—Cmnp-omise.—Fraud.—Evidence.—In an action by the payee, against the maker, on a promissory note executed in the adjustment, and as a compromise, of prior matters of difference between the maker and payee, the record of a pending suit by the payee against the maker, for damages for fraud alleged to have been practised by the latter on the former, in making such compromise, is not evidence tending to defeat the recovery of judgment against the maker, on such note.
    From the Elkhart Circuit Court.
    
      R. M. Johnson, J. D. Osborn and E. G. Herr, for appellant.
    J. M. Vanfleet, for appellee.
   Biddle, O. J.

Suit on a promissory note for three hundred and fifty dollars, made by the appellant to the appellee.

Answer in two affirmative paragraphs, admitting the execution of the note. Reply in denial. No question arises upon the pleadings. Trial by the court. Finding for the appellee. Motion for a new trial; overruled; exception ; judgment on the finding. Appeal.

The only question presented by the record, and the only one discussed in the brief of the appellant, is the sufficiency of the evidence to sustain the finding.

The evidence shows the following facts: ¡

That, before the making of the note in this suit, the appellee held a note against the appellant for five hundred and fifty dollars, and also a judgment upon another note of like amount. The appellant claimed that the judgment ought to be set aside, and that the note could not be enforced; but, being threatened with a suit on the note, and to avoid further litigation on the judgment, the parties entered into a compromise, by which it was agreed between them, that, in full satisfaction of the judgment and the note, the appellee would pay to the appellant eight hundred dollars, fifty dollars at the time, fifty dollars in thirty days, three hundred and fifty dollars in one year, and three hundred and fifty dollars in two years, for which last two payments notes were executed, the last of which is the one in suit. The appellant paid the two sums of fifty dollars each, and the first note. There was also in evidence the record of a pending suit in the same court, wherein the appellee was plaintiff and the appellant defendant, in which the appellee claimed damages, upon the ground that the appellant had defrauded her by false representations in making the compromise which is stated above; thus showing that both parties had adopted and adhered to the compromise—the appellant by paying the greater part of the money, and the appellee by suing upon the note in this action and bringing her action for damages sustained by fraud practised upon her in the compromise.

We can not see what use was made of the record of the pending suit as evidence, neither of the parties can rescind the compromise, for both have acted upon it, and have substantially executed its terms.

This state of facts constitutes no defence to the note in the present action. The finding of the court is right.

The judgment is affirmed, with costs.

Petition for a rehearing overruled.  