Campbell v. Upshaw

| Tenn. | Dec 15, 1846

Turley, J.

delivered the opinion of the court.

This is an action against the defendant, upon a promissory note, for the sum of one hundred and sixty dollars. Upon the trial the defendant introduced and read to the jury the deposition of one John L. Hawkins, who proved that he heard the bargain, out of which this promisory note arose, made between D. H. Abernathy, the assignor of the plaintiff, and the defendant James J. Upshaw; that it was for the purchase of morus multicaulis buds and the eggs of silk worms; that James J. Upshaw said lo Abernathy, that he was not disposed to buy but a few of the buds and eggs, that he was afraid to go into the business far; and Abernathy insisted strongly that he should buy three hundred and twenty dollars worth, and said if he would purchase that amount, and pay him twenty dollars to buy him a real, he would wait with him for the balance until he made it out of the morus multicaulis.

The plaintiff moved the court to exclude the proof from the jury, which motion was overruled, and the jury found a verdict for the defendant, and there was judgment accordingly; to reverse which the plaintiff prosecutes his appeal to this court.

The testimony of Hawkins ought not to have been received, and when received, it ought to have been excluded. This is an attempt to prolong the date of payment of a promissory note beyond the time specified in it, by parol proof; a thing which cannot be done under any circumstances, except where the instrument, either by fraud, accident or mistake, does not contain the true stipulations of the contract, as we have held at the present term of the court.

There is no such evidence in this case; neither is there any evidence of fraud or failure of consideration, in procuring the contract or in the execution of it.

Judgment reversed, and case remanded for a new trial.