The evidence in this case shows, that the note in controversy was given for the purchase of a tract of land. That fifty dollars was paid on it at the time it was given, and it was agreed that the amount of an account held by appellant against Lohr should also be credited when the amount should be settled, and the remainder discharged by hauling wood to Freeport at two dollars per cord. Appellee, J. C. Kean, was present and drew the writings evidencing the sale of the land. It appears that the note was indorsed with the fifty dollars, ninety-one dollars on the 18th of September, as of the date of the note, and the further sum of four dollars. The note was transferred after its maturity, and with full notice to the agent, who purchased it for the holder, that appellant claimed that it was fully paid.
The whole controversy in this case arises upon the credit of ninety-one dollars. The appellee claims that it embraces the whole amount for hauling wood, whilst appellant claims that it was the amount of the account agreed to be credited when the note was executed, and that for the hauling of wood after that time he is entitled to a further credit fully equal to the balance on the note. Tiffany, who was employed by Lohr, and was at work in the same yard, where the wood was delivered, testifies that appellant delivered wood to Lohr, which he estimates at one hundred cords or more. That the larger portion of it was hauled in the summer and fall of 1857. He also testifies that he hauled wood during the previous spring, and that in all about two hundred cords had been hauled from the forty acre tract sold by Lohr to appellant, and that he saw no other person haul from that tract. . Shuler also testified that he saw appellant haul wood to Lohr.
From this evidence we think that it is apparent that one hundred cords or more were delivered after the note was executed; and that wood had been previously hauled. The witness gives it as his opinion that in all as much as two hundred cords had been delivered, and this witness stands uncontradicted, and it appears that he had a sufficient opportunity of knowing the amount delivered. Then, when he was to receive two dollars a cord, this would greatly exceed the amount of the note and interest, after deducting the other payments.
It is true that the agent testified that appellant admitted to him that the ninety-one dollar credit was all he claimed on account of hauling wood. He also testified that appellant said he claimed no other credits than those indorsed. This evidence is opposed to the testimony of Liser, who testified that the agent Kean said to appellant, when, the credit of ninety-one dollars was indorsed, that appellant was then safe, as he could bring in his wood account as a set-off against the note. And that again, in November, Kean, the agent, agreed to settle and allow appellant’s account against Lohr on the note, but said he did not then have time, but requested him to call again, which he did some weeks afterwards, when he informed appellant that he had purchased the note, but said it could be settled. The appellant afterwards called, but appellees then refused to allow as a credit more than sixteen or eighteen dollars. Appellant insisted that he had more than paid the note, and complained of the agent for having purchased it, as he must have known that it was more than paid. Kean nowhere denies that this conversation occurred, but testifies to a different one. It seems strange, if this evidence was untrue, that Kean did not contradict it, as his evidence was given on the trial after Liser had given his, and when he must have known that it was material and must go far to establish the defense. From the whole of this evidence we are satisfied that the payment of the note is established. And as it was transferred after it was due, that the purchaser took it subject to the defense. The court below should therefore have enjoined the sale of the land under the trust deed, and decreed a reconveyance by the trustee to the appellant. The decree of the court below is reversed, and a decree entered here perpetually enjoining the sale of the land, by appellee Clark, and that he, within sixty days, make, execute and deliver a deed conveying the premises to appellant, and that appellee, Thomas M. Kean, pay the costs of this proceeding, as well in this as the court below. Decree reversed.