The evidence shows without contradiction that the defendant Nathan W. Miller was indebted to plaintiffs’ decedent upon a bond and mortgage, and that to meet a balance due and remove the lien, Miller and decedent met with the witness Williams; that a note was proposed for the above purpose; that the decedent insisted that there should be included in the note another outstanding note of $125, on which it was conceded that $75 had been paid, on which Miller claimed that a further sum of $25 had been paid; that it was finally agreed that the whole amount of the first note, which was not present, should he included in the note in suit, and that the amount indorsed on the first note should be ascertained and indorsed on the note in question. The only indorsement on the note in question is for $200, which is indorsed on the note as of July 20, 1908, in Nathan Miller’s handwriting, and alleged in the complaint and presumed by the law to have been paid on that day. After bringing the defendant to court on such an allegation, the plaintiff would on the trial withdraw it and ask the court to presume from the indorsement made by defendant that the $200 was not in its entirety paid on that day, but that it included all earlier payments made by defendant on the first. Thus, the maker, incompetent as a witness to testify to a personal transaction with the decedent, is compelled to meet an issue that did not exist under the pleadings. That is not just or technically correct. The further contention that the evidence is incompetent in that by parol it disputes the note, is not tenable, as the answer states facts that show partial failure of consideration and the uncontradicted evidence proves i,t.
The judgment should be reversed and a new trial granted, costs to abide the event.
Carr, J., concurred.
Judgment affirmed, with costs.