concurring:
I concur in the order of affirmance, but to sustain the action of the district court I think it quite unnecessary to resort to the newly discovered evidence. The facts alleged in the answer in my opinion do not constitute a defense to the action. So far from showing that there was no consideration for the note, they show that there was a valuable and adequate consideration. The defendant was, according to his own version of the facts, liable to the plaintiff as her trustee. She had a right to hold him accountable in that character, and to demand the proceeds of his investments of her money; and he had a right, if his conduct in her affairs had been without fault, to discharge his obligation to her by turning over the securities in which he had invested her money. But if, instead of settling in that way, he chose to give, and she chose to take, his promissory note for a sum of money less than was actually due her, the validity of such a settlement cannot be questioned. His liability as trustee was thereby extinguished, and he became, in fact as well as in name, the owner of the mortgage and the debt thereby secured. This was a good consideration for the note, and all the answer alleges, and all the defendant’s evidence amounts to, is that there was a contemporaneous verbal agreement that the note was not to be paid -according to its tenor, but was to be satisfied out of the proceeds of the Cox mortgage. In my opinion, no evidence of any such agreement should have been received or *485considered, as its only effect was to contradict the terms of the note.
This view of the case, if correct, is conclusive in favor of the plaintiff, regardless of the weight of evidence upon the disputed facts. I wish to add, however, that in my opinion the finding of the court ought to have been in favor of the plaintiff on the evidence adduced at the trial. The defendant’s testimony was in direct conflict with his own written acknowledgments; that of the plaintiff was plain, straightforward and consistent, not only with the written evidence, but with itself. I do not agree with the court that it presents even an apparent inconsistency. The plaintiff had testified clearly and distinctly that the note was given in full and final settlement of all her claims on the defendant by reason of his investments for her. Up to the day it was given she had never heard of the Cox note and mortgage. Defendant had pretended that her money was invested in loans to other parties, and in mining stocks. Three months after the date of the note, defendant for the first time proposed to transfer to the plaintiff the Cox note and mortgage in satisfaction of his note, and she agreed to take it, not because she thought her money was invested in it, but because she feared if she refused to take that she would get nothing.
It was with reference to this agreement, made three months subsequent to the execution of the note sued on, that she gave a woman’s opinion that the mortgage and money invested in it were, at the date of the trial, hers. Her further statement that there never was any understanding between the defendant and her by which he was to become the owner of the mortgage and become liable on the note, in the light of her other testimony, means no more than this : That after she first heard of the Cox mortgage in April, 1876, there never was but one understanding in regard to it, and that was that it was to be assigned to her in satisfaction of the defendant’s note.