On August 28, 1909, the plaintiff and defendant, husband and wife, entered into a written agreement for immediate separation. This agreement provided for a division of the property “accumulated by them” and the settlement for all time of the property rights between them; that plaintiff should have one-third and the defendant two-thirds of certain real and personal property described in the agreement and of the farm implement business then carried on by defendant, all of which was specified as being their common property. It was further agreed that all of the specified property, except the farm implement business, should be immediately appraised and divided; that the farm implement business should be continued until January 1, 1910, at which time it should be appraised and divided. Defendant further agreed to keep an accurate account of i-eceipts and expenditures, *219and render a full and complete account of said business to the appraisers on that date, unless sooner sold, and to turn oyer to plaintiff one-third of the appraised value of said business on January i, 1910. Accompanying said agreement was an undertaking in the sum of $2,000, guaranteeing the performance of that part of the agreement relating to the farm implement ■business. On or about September 3, 1909, all of the property except the implement business was appraised and divided. The plaintiff received $6,452.23, the defendant received $12,908.46. The share received by the defendant included a farm listed at $10,200, after deducting an incumbrance of $1,800 thereon. On or about February 1, 1910, an appraisement of the implement business was made in which the appraiser appointed by plaintiff did not participate, and was not asked to participate. The assets of the implement business were found to be $27,526.96, including accounts and bills receivable amounting to $3,712.72 which were found by the trial court to be worthless. The appraisement of the liabilities of the implement business showed a total liability of $31,314.24, so that after deducting the worthless accounts the net excess of liabilities over the assets was $7,500.20. This condition of affairs was not made known to the plaintiff until the time of the trial of the case. On March 1, 1909, defendant delivered to the plaintiff his promissory note for $1,000 due in one year with interest at 7 per cent. This note was not specified in the separation agreement, was not considered in the division of the property made September, 1909, and was not considered in estimating the liabilities of the implement business. It does not appear that the money for which this note was given was a part of the property “accumulated by them.” The defendant paid the interest due on said note March 1, 1910, and March 1, 1911. On July 9, 1911, plaintiff brought this suit against defendant. The first cause of action was upon said note. The second cause of action was upon said $2,000 undertaking. The defendant answered the secón .1 cause of action setting forth the insolvent condition of the farm implement business. To the first cause of action the defendant interposed a counterclaim setting forth such insolvent condition, and that at the time of the division he had a mistaken impression and was of the opinion that the implement business was solvent, and asked for an affirmative judgment against plaintiff. It was *220not alleged that ¡the failure to consider said $1,000 note in the settlement or in the separation agreement was the result of a mutual mistake of fact, nor was any reformation of the agreement sought. Upon the trial the 'defendant did not produce books of account showing the condition of the implement business. He testified that he had destroyed the checks by which he had paid the indebtedness of the implement business and had destroyed his invoices, and that the invoices were what he relied upon to ascertain his liabilities. Furthermore, in his counterclaim verified by him a year and a half after the appraisal, defendant pleaded that as the result of the appraisement of the implement business, the liabilities were $25,515.57, whereas, at the trial he testified they were $31,3-14.24. The counterclaim also showed that the assets were $6,427.11 less -than the liabilities, instead of $7,500.24, as finally proven. The defendant sold his farm in March, 1910. “Q. How much did you realize from1 the sale of the farm? A. $16,000.” The trial court found for the defendant upon the second cause of action, and for the plaintiff upon the first cause of action. Defendant appeals.
It is the contention of appellant that the note was merged in ■the separation agreement, and that by reason of overpayment upon the division made on September 3, 1909, the note has been entirely paid, and that the defendant should have had judgment against plaintiff for one-third of the net loss arising from the implement business less the amount of said note, and that in any event regardless of the rightfulness of the counterclaim the plaintiff would not have a legal claim in ex-cess of two-thirds of the amount of the note. These claims are urged without pleading a mistake and without any other evidence 'than the note and separation agreement tending to show a mistake in the agreement. We -think these .contentions are unsound. It is clear that the money for which the note was given was not the result of the joint accumulations of the parties, and that the note was intentionally omitted from the separation agreement. The payment of two years’ interest after the settlement strongly indicates such to be the understanding on -the part of defendant. Nor is the result of the division of the property so inequitable as to justify us in overturning the decision of the trial court. The plaintiff received $6,454.23. The amount of the note with interest to- January 1, 1910, was $1,058.33, male-*221ing a total of $7,512.56. So far as the evidence showed, this was the net worth of the plaintiff on that date. The defendant received upon the division $12,908.46. The farm listed at $10,200, was sold for $16,000 so that he realized $5,800 more than the list price, or about $4,000 more than the list price including the incumbrance. These sums added to the amount received by defendant upon the division would produce $18,708.46 or $16,908.46, dependent upon the meaning of the word “realized-.” If to the admitted shrinkage of $7,500.20 in the implement business there be added the amount of the note with interest to January 1, 1910, the result would be $8,558.53. This sum deducted from the last-mentioned sum would -place the net worth of -the defendant at either $10,149.93 or $8,349.93.
We do not think that under the pleadings and the facts shown, the trial court erred in rendering judgment for the plaintiff upon the note.
The judgment and order 'denying a new -trial are affirmed.
WHITING, P. J., and McCOY, J., concur in result.