The rule is, that when the contractor has received the price, he is liable for the highest price between the day of delivery, and either the commencement of suit, or the time of trial, but which of these, it is not necessary now to determine; and as a promissory note or due bill is prima facie evidence of indebtedness, or of having received the price, this case would stand upon that rule. See Cannon v. Folsom, 2 Iowa, 101; Foley v. McKeegan, at the December term, 1855, of this court.
When this cause was before the court at the last term, the statement of facts was ambiguous, and led to the supposition that the tender was made on the 27th of April, the day the due bill was made and was due, in which case the former decision was right.
The judgment of the District Court is affirmed.