Granfield

In this action the plaintiff sought to recover the sum of $804.08, alleged to have been paid to the defendants under a mistake of fact. The defendants answering denied that the money in suit was paid to the defendants under a mutual mistake or any mistake, and further answering, in that behalf, alleged that the plaintiff paid the money to the defendants pursuant to the terms of an agreement between the plaintiff and the defendants, whereby the terms and conditions of a pre-existing written agreement between the plaintiff and the defendants were modified.

Upon the issues thus joined the trial court found in favor of the defendants. The only point urged upon the appeal is that the evidence is not sufficient to support the findings, the contention in this particular being that the evidence does not show that the terms of the original contract were modified by either or both of the methods prescribed by section 1698 of the Civil Code for the modification of written contracts, viz., (1) by an instrument in writing; (2) by an executed oral agreement.

The evidence upon this phase of the case is largely confined to the testimony of a witness for the defendants that a memorandum in…