Erwin v. Saunders — 1 Cow. 249

Majority

p. 249

Erwin against Saunders and Ely.

Headnote

A note, payable in specific articles, and absolute on the face of if, cannot be defeated by brat evidence, shewing that it was given to be void upon the happening of a contingency : e.g On its appearing that the debt for which if be^/inTaWo* tied by one of his Applying for his dlV charge under

the insolvent act. Though, it seem, that an agreement between the parties, made, subsequent to its ex», ecution, that it should be void on such a contingency, would be valid, as a waiver of the performance, on the happening of the contingency.

Written agreements, of any kind, cannot be contradicted, varied or materially affected? by oral testimony;

Yet simple contracts, in writing, may be avoided by parol evidence of fraud, or the want or failure of consideration, or by the waiver of performance ; and they may be varied by a parol enlargement of the time of performance.

A debt discharged under the insolvent act, is a good consideration for a new promise?

Certiorari to a Justice’s Court. In assumpsit, by Erwin against Saunders $• Ely, upon a note for $15, payable at 9 months in Windsor chairs, given by the defendants to the plaintiff, the defendants sét up as a defence, that the note was executed by the defendants for a debt due from Saunders to Erwin, for costs which the latter had paid for the former. That Erwin, having sued Saunders for that debt, the dispute between them was, whether it was not gone by a discharge thereof, which S. had obtained under the act for giving relief in cases of insolvency. They put this upon the question, whether the debt had been inserted in the inventory of S. which he gave on petitioning for his discharge ; and agreed that S.' & E., the defendants, should give the note in question for that debt. A witness, who was present at the giving of the note, testified, that “ he 1

p. 250

understood by the parties, that the note was-to be executed, SM5jecí i0 a condition, that if it should appear by the said inventory, that the said Saunders had inventoried the said demandfor costs, that then the said demand should be void.” Evidence of the discharge and insolvent proceedings were objected to by the plaintiff, but without specifying any particular ground of objection ; and the Justice suffered the defendants to go into proof of all the above, matters of defence, and a verdict and judgment were rendered for the defendants. The principal question here was, whether the note, being absolute upon the face of it, could be defeated by shewing the condition, &c.

II. Welles, for the plaintiff in error.

A. Konkle, contra.

There is no doubt of the general principle, that written agreements, whether specialties or simple contracts, and whether within or without the statute of frauds, are not to be contradicted, varied or materially affected by oral testimony. This rule, however, does not exclude parol evidence of fraud, or the want or failure of consideration in, nor the enlargement of the time for performance, or a waiver of the performance of a written simplj contract. But this case does not fall within any of the established exceptions to the general rule. The evidence here shews an entirely different contract from that which appears in the written instrument. The cases of Hunt v. Adams, ( 7 Mass. Rep. 518 ;) Stackpole v. Arnold, ( 11 Mass. Rep. 27 ;) Fitzhugh v. Runyon, ( 8 John. Rep. 292 , 2d ed.) Thompson v. Ketchum, (id. 146;) and Wells v. Baldwin, ( 18 John. 45 ,) are conclusive to show, that the parol evidence was inadmissible. Hoare & others v. Graham & others, (3 Campb. 57) is very analagous to this case. That was an action by the indorsee against the indorser of a promissory note. The defence setup was, that the defendant refused to indorse it, unless the plaintiffs would agree that it should be renewed on becoming due. They did so agree. But, instead of calling for a renewal, they demanded payment at the matu

p. 251

rity of the note. This evidence was held inadmissible. Ld. ► e Ellenborough says, “ the parol condition is quite inconsistent with the written instrument. The condition for a renewal entirely contradicts the instrument which the defendant has signed. There may, after a bill is drawn, be a binding promise for a valuable consideration, to renew it when due. But if the promise is cotemporaneous with the drawing of the bill, the law will not enforce it. This would be incorporating with a written contract, an incongruous parol condition, which is contrary to first principles.” So, if the agreement set up, in this case, had been made after the giving of the note, it would, perhaps, have been valid, and might have been proved. Such a subsequent agreement would have admitted the absolute nature of the contract, as it appeared on the face of the note, and might be regarded as a valid parol waiver of performance, not contradicting or varying the original agreement.

The parol evidence being excluded, the judgment cannot be supported. For, allowing the debt for which the note was given, to have been discharged, it was still a sufficient consideration for a subsequent promise to pay it. (Scouton v. Eislord, 7 John. Rep. 36 .) The note was therefore valid, and the verdict and judgment should have been for the plaintiff.

Judgment reversed.