Reid

This is an action on a promissory note given by the defendants to the plaintiff as a second renewal in part of an original note given as part payment for an interest in a mercantile business. This note, as well as each of the prior notes, contained the clause “With privilege of renewal. ’ ’ The note here sued on was executed on December 15, 1930, was payable March 15, 1931, and this action was commenced on August 24, 1931. In their answer the defendants admit the execution of the note and set up the defense that it does not express the real agreement between the parties, it being alleged that the note was given in part payment for an interest in a mercantile business; that through a mistake of the parties or through a mistake of one party, which mistake was known or suspected by the other, the note does not express the real agreement between the parties; that at the time of its execution it was agreed by the parties thereto that the note should be paid only from the profits derived by the defendants from the business in question; and that said profits have not been sufficient to pay the same. From a judgment in favor of the plaintiff the defendants have appealed.

At the trial and…