54 Iowa 684 | Iowa | 1880
The second count of defendants’ answer denies that the entire consideration of the note was the purchase-money of the lands, and avers that at the time the note and mortgage were executed the parties entered into an agreement that defendants were to pay $1,000 for the land, and a further sum of $100 in consideration that plaintiff should procure a highway to be established upon the land, which had been viewed by commissioners properly appointed upon defendant’s petition. This plaintiff agreed to do, and his agreement constituted the consideration of the notes to.the extent of $100. It is alleged that the notes have been paid, except the sum of $100 upon the note described in the plaintiff’s petition.
The demurrer to the petition is on the ground that it sets up a verbal agreement, by which defendants seek to add to or change the terms of the contract contained in the note and mortgage. It was erroneously sustained.
The answer shows that the agreement of plaintiff recited therein was a part of the consideration of the note. A failure of the plaintiff to perform his contract was a failure of the consideration, pro tanto. It is not denied, and cannot be, that a partial failure of the consideration may be pleaded as a defense to the action to the extent thereof.
Atherton v. Dearmond, 33 Iowa, 353, and Gelpcke, Winslow & Co. v. Blake, 15 Id., 387, cited by plaintiff’s counsel, are not inconsistent with the foregoing views. . In the first case it was held that a parol contract, which prescribed the conditions and amount of payment to be made, differing from the terms of a note, could not be shown as a defense to an action upon the note. The other case simply applies to appropriate facts the familiar rule that a written instrument connot be changed or waived by a parol agreement between the parties. The judgment of the District Court is
Reversed.