This is an action upon a promissory note for $517, made by the defendant and payable to the order of one Scognamiglio. *179The evidence shows that the note was given to Scognamiglio upon the representation that 25,501 cubic feet of masonwork in a certain wall was to be done, and that the note was indorsed and delivered to the plaintiff, who is shown by the evidence to have been a partner of Scognamiglio, and had knowledge of all the circumstances under which the note was made. It was clearly shown upon the trial that there were only 20,446 cubic feet of masonwork to be performed, and that the defendant had paid certain sums on account. The evidence shows that the note was given upon the understanding, of which the plaintiff was fully aware, that if the defendant was found to be indebted to Scognamiglio in a smaller sum than that named in the note, the defendant should only be liable for the reduced amount. We have examined the evidence carefully, and it shows that the defendant is indebted for the work done in the sum of $92.68.
Judgment reversed, and new trial ordered, with costs to appellant to abide the event, unless the plaintiff consents within 10 days to reduce the judgment to $92.68, in which event the judgment is affirmed, without costs to either party.