5 Denio 514 | N.Y. Sup. Ct. | 1848
It is claimed that the referees erred in admitting testimony of the declarations of Allen Kilborn. If it was objected to, unquestionably the referee erred in admitting it. (Paige v. Cagwin, 7 Hill, 361.) But the objection, as stated in the report, goes to the whole defence and not to the admissibility of the mere mode of proving it. It was evidently intended to raise the question whether the defence set up was admissible, the plaintiff insisting that as the contract between the maker and payee of the note was in writing, being evidenced by the notes on one side and ihe release on the other, it was incompetent to vary it by parol evidence of a further agreement made at the same time that the written agreement (the notes and release,) should be void unless there was a settlement with all the heirs. The question thus presented is one of no little nicety as applicable to the facts of the case. It has been held in several cases that parol evidence to show that a note was given on condition that it should become void on the happening of a contingency, is inadmissible. (Ervin v. Saunders, 1 Cowen, 249; Payne v. Ladue, 1 Hill, 116.) These cases are very similar to the one before us. The rule,
Report of referees set aside.