delivered the opinion of the court.
There seems to be no objection to the evidence offered by the defendant, in this case, on the ground that it goes to contradict the note. The agreement between the parties was, that the defendant should give to the plaintiff a note not negotiable, payable on the 1st January, 1828, for an undivided half of the land, and that, if the plaintiff should not, by the time the said note became payable, discharge the mortgage which was upon the land, the defendant should be at liberty to pay, towards the , discharge of the mortgage, the amount of this note, on the plaintiff’s account. And the amount paid in pursuance of this agreement is now claimed to be allowed*as a set off to the note. All this is consistent with the legal operation of the note, and with its express terms. 4 Starkie’s Ev. 1047—1049; 5 D. & E. 381, Milburn v. Ewart; 1 Starkie’s N. P. C. 267, Jeffrey v. Walton; 4 Mass. Rep. 414, Dow v. Tuttle.
And the money paid by the defendant, under the contract, seems to be a legal set off in this case, unless he has so conducted as to preclude him from this defence as against Bunce.
The answer to the set off is, that although the defendant had notice of the assignment of the note to Bunce nine months before it became due, he gave no notice of the agreement that existed between him and the plaintiff to Bunce, but kept that matter concealed.. And we are of opinion that such a course must, under the circumstances, be considered as a waiver of the right to take advantage of this set off, and as an acquiescence in the assignment of the note to Bunce. 16 Mass. Rep. 397, King v. Bowles; 3 N. H. Rep. 539 Sanborn v. Little.
Judgment, on the verdict, ....