Bell v. McColgan

LANGDON, P. J.

Defendant has appealed from a judgment against him in an action upon a promissory note made and delivered by himself and brother, Daniel A. McColgan, to Reginald and Eustace Bell. After the commencement of the action, Eustace Bell died and the executors of his last will and testament were substituted in his place and stead as plaintiffs in the action.

[480]

The -complaint was the usual one upon a promissory note. The amount of the note was $8,415.15. Defendant filed an answer and cross-complaint in which he stated that at the time of the execution of the promissory note, it was agreed By and between plaintiffs and defendant and Daniel A. McColgan that defendant and said Daniel A. McColgan should execute to plaintiffs a promissory note for the amount then owing from defendant and said Daniel A. McColgan to. plaintiffs and the amount of said indebtedness was, by the mistake of plaintiffs and defendant and said Daniel A. McColgan, then and there calculated to be the sum of $8,415.15, and said last-named sum was inserted in said promissory note by reason of said mistake, in place and stead of the true and correct amount of said indebtedness ; that in said calculation there was omitted by the mistake of plaintiffs and defendant and said Daniel A. McColgan the sum of $2,194.57 advanced and paid to Holbrook and McGuire by defendant and Daniel A. McColgan for and on account of plaintiffs on the fifteenth day of March, 1917; that the true and correct amount owing to plaintiffs from defendant and Daniel A. McColgan on said seventh day of October, 1918, and the amount intended to be inserted in said promissory note as the principal thereof by plaintiffs and defendant and Daniel A. McColgan was the sum of $5,980.93, being the sum of $8,415.15 less the sum of $2,149.57. Defendant then alleged that he had not discovered the mistake until about January 15, 1922, and prayed for a reformation of the note in accordance with his allegations.

The answer to the cross-complaint admitted that the understanding between the parties was that the note in question should represent the amount then owing to the plaintiffs, but denied that by mistake of the parties or of Daniel A. McColgan said sum was calculated to be $8,415.-15, and alleged, upon information and belief, that at the time of the execution of the note there was actually owing from the defendants to the plaintiffs a sum in excess of $11,000. It was denied that by the mistake of the defendants and plaintiffs or by the mistake of Daniel A. McColgan the sum of $2,194.57 advanced and paid to Holbrook and McGuire by said defendants on the fifteenth day of March, 1917, or at any other time, was omitted in the cal