Mixon v. Warren ( 1894 )

The administrators of Thomas Warren, deceased, sued W. J. Mixon on a promissory note for $137.50 dated October 23, 1887, due January 1, 1892, and reciting that it is for the purchase money of “ 130 acres of lot of land number eight in the first district of Wilcox county.” Defendant pleaded payment, and alleged that the year of maturity was by clerical error written 1892 when it should be 1890. lie introduced three other notes from himself to Thomas Warren, each for the same amount as the one sued on, bearing the same date, and due respectively on January 1, 1888, 1889 and 1891. The first recites that it is for the purchase money of “ lot of land No. eighty containing 130,” in the first district of Wilcox county. Each of the other two recites that it is for the purchase money of “one hundred and thirty acres of lot of land No. eight,” in said district and county. On the back of the last was: “$73.92. Deceived on the within note seventy-three dollars and ninety-two cents, this Jan’y 24th, 1891.” James M. Mixon testified that lie wrote the note sued on, and was present when the contract between Thomas Warren and W. J. Mixon was made, no one else being present but himself and the parties to the contract. The consideration of the note sued was land purchased by the defendant from Warren, for which defendant gave $50 in cash and his notes for the balance. Witness did not remember the amount of the notes; thought three notes were given, but was not ■sure. Being shown the three notes above mentioned, he testified that he wrote them, and they were a part of this same transaction. Defendant did not give more than these three notes, together with the one sued on. According to the recollection of witness, these notes so given were to fall due one each year, and the first one fell due in 1888; so that they should have fallen due in 1888, 1889, 1890 and 1891, and the note sued was to be due in 1890. Warren died in November, 1891. Not more than six months before his death he stated, in conversation with witness, that defendant was an honest, hard-working man, that defendant did not then owe him very much, and that defendant had paid him nearly all that he had been due for the purchase money of the land Warren had sold him. John Warren testified that he made the entry of credit on the note due in 1891, hy authority of Thomas Warren ; did not remember the circumstances of making the entry; did not know how many notes were given to Thomas Warren hy defendant; there must have been five, but did not know. Was not present when notes were given, and never heard Thomas Warren or any •one say how many notes there were.

Hal Lawson, for plaintiff in error.

The court directed a verdict for the plaintiffs.