44 Wis. 569 | Wis. | 1878
This was an action by the indorser against the drawer, payee and acceptor of a bill of exchange. The payee made default. The drawer and acceptor set up in their answers, as. a defense, that the bill in question was given and accepted on condition that the payee would surrender and deliver up a certain promissory note, which it held against a
The rule that parol evidence is not admissible to contradict or vary an absolute engagement to pay money on the face of the bill or note, does not exclude evidence as between the original parties showing a total or partial failure of consideration. The cases of Thomas v. Thomas, 7 Wis., 476; Peterson v. Johnson, 22 id., 21; Hubbard v. Galusha, 23 id., 398; Smith v. Carter, 25 id., 283; Folger v. Dousman, 37 id., 620, belong to this class. But here the parol evidence of a contemporaneous agreement was introduced to show that an absolute acceptance was only conditional; in other words, to vary and destroy the settled legal import of the written contract. The evidence was improperly admitted for the reasons above given, and must work a reversal of the judgment.