Hesch v. Dennis

Mr. Justice Barnes delivered the opinion of the court. 2. Bills and notes, § 56*—when failure of consideration not defense. In an action to recover on a promissory note given as part of the purchase price of a leasehold interest in and equipment of a theater, where defendants retained possession and made no attempt to rescind, a judgment for defendants held erroneous, there being no evidence of fraud or failure of consideration, or of a subsequent valid agreement, and evidence to vary the terms of the note being incompetent. 3. Bills and notes, § 431*—when evidence of contemporaneous agreement inadmissible. The maker of a promissory note cannot defend against it by showing an oral contemporaneous agreement which makes the note payable on a contingency, for the reason that such evidence is incompetent as tending to vary the terms of a note absolute On its face. 4. Bills and notes, § 327*—when agreement to cancel invalid. An agreement by the payee named in a promissory note to cancel the note is invalid where it appears that such agreement was made after the making of the note, and where it does not appear that there was a consideration for such agreement. 5. Bills and notes, § 90*—when interest begins to run. The legal construction of a promissory note payable thirty days after date, "with interest at the rate of 1% per annum, after -,” is that such note draws interest from and after thirty days from its date. 6. Contracts, § 238*—when condition waived. In an agreement whereby plaintiff agreed to transfer to defendants a leasehold interest in and equipment of a theater, which agreement contained a clause providing that full performance should be made “when the papers were drawn if found to conform” to certain regulations “on or before thirty days” after the date of the agreement, where defendants accepted a bill of sale of such property and took possession nine days after the date of such agreement, held that defendants waived the provision quoted by accepting such bill of sale and taking possession, and cannot complain that no more time was taken to ascertain whether such building was as provided in the agreement, although the provision quoted was ambiguous.