Taylor & Farley v. Beebe , 27 Iowa 564 ( 1869 )

Coins, J.

This judgment must be reversed, because the finding of facts by the court is, in our opinion, contrary to the evidence. There is no conflict in the evidence as to the fact that the note in controversy was always the property of plaintiffs, although it was made payable to their agent. The testimony of the agent and of each of the plaintiffs show that it was indorsed by the agent to the plaintiffs, and delivered by him to them within a few days after it was executed ; that it was kept by them and was not in the possession of the agent except when he was sent to collect it, and at the time of the payment of the twenty-five dollars indorsed thereon. Against this testimony is that of the defendant, that there was no indorsement on it when he paid the twenty-five dollars. This negative testimony of one witness cannot be properly held to overcome the positive statements of the three. Especially is this so, when the evidence of the one must be understood as stating that he saw no indorsement on the note; while the three swear po'-hively that it was there. In this way the whole may be reconciled consistent with the integrity of all — only imputing a mistake to the one, in that he did not see what was written on the back of the note, and this, although in truth he examined the note.

If this indorsement was put upon the note shortly after it was given, then the set-off pleaded by defendant, and held by him against the agent, and which accrued, if at all, long after that time, cannot of course be used against these plaintiffs.

Reversed.