Erwin v. Saunders

Curia, per Sutherland, J. 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 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.