52 Pa. 356 | Pa. | 1866
The opinion of the court was delivered, May 1866, by
The affidavits of defence set forth nothing that could avail the defendant at a trial, even were it admissible to show by parol evidence, that the parties had agreed to a conditional change of the promise contained in the note. They affirm that it was agreed, if the defendant should be unable to pay the amount of the note at its maturity, that he should have the time extended six months, and that this agreement for an extension was based upon the original contract for the purchase and sale of a colliery, that the payment of the purchase-money was to be made from the coal mined as therein stated, and that it was not intended to alter or accelerate the time of payment. By that contract (incorporated into the affidavit) the defendant was bound to pay for each ton of coal mined from the premises sold to him the sum of thirty cents monthly, until the purchase-money was fully paid. He also covenanted in it that the colliery should be diligently and constantly worked by him. It was not enough, therefore, that he did not obtain coal. Assuming that he might have entitled himself to a renewal of his note, it was essential to such a right that he should diligently and constantly work the colliery, and that notwithstanding such work, he should fail to take out a sufficient quantity of coal to pay the sum stipulated at the rate of thirty cents per ton.
He was not at liberty to suffer the mines to be idle, much less to cease mining and yet claim an extension of time for payment, because he had not taken out the coal which would have been mined had he performed his covenant. But the affidavits make
It is also decisive against the defendant that he relies on a parol agreement made contemporaneously with the note, that it should not mature absolutely in six months according to its terms. Were he permitted to go to trial, it would not be competent for him to give parol evidence of such an agreement. It contradicts the written contract of the parties. No doubt in a suit between the original parties to a promissory note, parol evidence may be given to show what the consideration of the note was, or that the consideration had failed. Such evidence does not contradict or vary the instrument. But no case goes to the length of ruling that such evidence is admissible to change the promise itself, without proof or even allegation of fraud or mistake. The contrary has been repeatedly decided. In Hoare et al. v. Graham, 3 Camp. 56, it was ruled that in an action on a promissory note, or bill of exchange, the defendant cannot give in evidence a parol agreement entered into when it was drawn, that it should be renewed, and payment should not be demanded when it became due. The doctrine of this case was repeated in Moseley v. Hanford, 10 B. & C. 729 ; in Woodbridge v. Spinner, 3 B. & A. 233, and in Free v. Hawkins, 8 Taunton 92. Such also is the ruling of our own courts. Hill v. Gaw, 4 Barr 493, was a suit by the payee of a check against the drawer, in which it was held that evidence of a parol agreement made at the time of the execution of the check, that payment was not to be demanded at maturity, but that time was to be given at the election of the drawer, could not be received. The court said they could not perceive any difference in this respect between a
Judgment affirmed.
