Burge v. Dishman

Dewey, J. Dishman sued Burge and Fox before a justice of the peace. The cause of action was a promissory note for a sum of money payable at a particular time. The process was returned “not found” as to Fox. Burge filed two special pleas before the justice in substance alike. They allege that Burge executed the note with Fox as his surety; that, at the time of making the note, it was agreed by Dish-man, Fox, and Burge, that Fox, within a week, should give Dishman another note with surety for the same debt, and that Dishman, upon his doing so, should give up the note secured by Burge ; that this agreement was the condition on which Burge signed the note; that Fox did give Dishman another note with security, but that the latter refused to [273] give up the note signed by Fox and Burge. The defendant was also entitled to the general issue. There was no answer to the special pleas. The case was appealed. In the Circuit Court, Burge offered to prove, by parol, an agreement corresponding substantially with that set forth in the pleas, but the Court rejected the testimony, and rendered final judgment for Fishman. C. P. Hester and R. W. Thompson, for the appellant. ■ A. Kinney and 8. B. Gookins, for the appellee. The rejection of the parol evidence forms the only point in the case, and on that point we agree with the Circuit Court. By the defence set up, Burge attempted to vary the terms of the note by a cotemporaneous verbal agreement. The parol condition that the note should be given up on the giving another note with surety, was entirely inconsistent with the written promise made by Fox and Burge to pay a sum of money on a given day. Such a defence is clearly not allowable. Hoare et al. v. Graham et al., 3 Camp. 57. Odam v. Beard, 1 Blackf. 191, and note. Had Burge offered evidence that a second note had been accepted by Fishman in discharge of the first, it would have been admissible to prove accord and satisfaction, under the general issue; but that defence would have derived no strength from the parol contract made at the time of giving the first note. Per Curiam. The judgment is affirmed, with 1 per cent. damages and costs.