delivered the opinion of the court.
This is an action upon a promissory note executed by the defendant. The latter resisted the plaintiff’s demand, on the allegation of a contract, by which it was agreed between parties, that the note sued on, should be delivered up, on the defendant’s giving to the plaintiff a note for a larger sum, drawn by Dr. John Towles, and endorsed by the defendant. There was judgment for the plaintiff, and the defendant appealed.
The record shows,1 that the tender of Towles’ note was proven, and that the defendant attempted to establish the contract on which he relied, by propounding interrogatories to the plaintiff, whose answers denied it. In order to contradict his answers, two witnesses were interrogated, and the district judge appears to have been of opinion, that the defendant’s efforts in this respect, were unsuccessful.
After a careful examination of the plaintiff’s answers, and the testimony of the two witnesses, we conclude, it is not our duty to interfere with the judgment. The answers of the plaintiff being corroborated by very strong circumstances, in our opinion, outweighs the testimony of the witnesses, *357•and renders it probable, that they did not well understand the meaning of the parties, and mistook an hypothetical for a positive contract.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.