| Me. | Jun 15, 1834
The discharge of the old notes, written upon the copies, was evidently founded upon the giving of the new note, which was received in payment. If that never took effect as a subsisting note, or was avoided as inoperative by the defendants, the consideration for the receipt failed. Upon these facts, it would appear that the old notes were not discharged, but might be recovered, as the jury were instructed. A receipt forms an exception to the rule of law, that written testimony cannot be contradicted or varied by parol.
A motion is filed to set aside the verdict, as against the weight of evidence. The consideration of a note of hand is open to inquiry, between the original parties. It may be shown that there was either no consideration, or that it had failed. In the case before us, there was no want of consideration. It consisted in the dissolution of the attachment, and the discharge of the old notes, which was effectual, if the new note was not defeated. It may be shown that an instrument, though it has the form of a promissory note, was never given, or taken and received as such. That it was put into the hands of a third person, to be delivered upon a contingency, which has not taken place. That it was taken from the possession of the maker, without his consent. That although it was suffered to go into the hands of the payee, it was to have no validity, until after the happening of a certain event. In these cases it would appear, that the parties had never come to any agreement, which would give to their contracts a subsisting character. The consent of the parties, necessary to their validity, would be disproved. But when once a written contract is made,
It does appear, from the testimony of the witnesses for the defendants, that the suits were withdrawn, a discharge on the copy of the old notes given, and the note in question signed and delivered, upon the condition that the original notes should be procured, and sent to the defendant, Cutis, within two weeks; and that to this the attorney of the plaintiffs assented. This is manifestly a condition subsequent, not to be found in the note, but attempted to be attached thereto by parol evidence. This testimony was received without objection; but when called upon to determine whether the verdict is or is not against the weight of evidence, it must be weighed, according to the rules established by law. This testimony, such as it is, is contradicted by two witnesses. If false, it ought not to affect the note; and if true, it was not competent to change its terms, or interpose new conditions. The defence itself is without merits. It appears that the old notes have, since January, 1833, been ready for the defendant, Cutís ; and he has in his hands the evidence of their discharge.
New trial granted.