Simonton v. Steele

GOLDTHWAITE, J. The bill of exceptions does not disclose any offer to return the notes and account, previous to the maturity of the note given for them, or previous to the institution of this suit; but no question is raised here on this point of the case, and we presume, from the silence of the bill of exceptions, that none was raised in the Circuit Court. The principle contended for by the counsel of the plaintiffs in error, as governing the case, in our opinion, has no application to it, because the evidence admitted, only shows what was (he contract of the parties, and does not vary from, or contradict, the note. If the note alone was before the jury, it would be impossible for them to derive any information from it, except that on a particular day, a certain sum of money was to bo paid by the defendant to the plaintiffs. Indeed, the contract of the parties, is not evidenced by the note; that only determines when the money is to be paid, but leaves us entirely ignorant of the consideration, for which it was given, and of most of the terms by which the contract was to be governed. It may be admitted the defendant would not be allowed by the rules of law, to show that he was to pay a less sum, or at a different time, but the evidence before the jury, did not, nor could have such an effect. It was necessary to ascertain what was the contract between the parties, before any judgment could be pro 359 nounced upon the legal effect; the facts disclosed shew that when the notes and account were transferred, it was agreed, if they could not be used in a specified manner, they should be returned to the plaintiff, and the contract rescinded. This certainly has not the effect in any manner, to contradict the note. As soon, therefore as the notes and account were offered to be returned, after it was ascertained they could not be used for the purpose agreed on. the contract was discharged or rescinded, and the note sued on ought to have been given up or cancelled. There is no error in the judgment, and it is affirmed.