Hatch v. Hyde, 14 Vt. 25

Hatch v. Hyde

14 Vt. 25 | Vt. | 1842

The opinion of the court was delivered by

Bennett, J.

The plea in bar sets up a parol agreement contemporaneous with the giving of the note, and inconsistent with the one expressed in the note. The horse, though lame and diseased, was clearly a sufficient consideration for the note, and no fraud is pretended. The note then, being upon sufficient consideration, and absolute upon the face of it, cannot, by parol evidence, be converted into one payable upon a contingency. Bentley v. Bradley, 8 Vt. R. 243. Isaacs v. Elkins, 11 Vt. R. 679. As the agreement, set up *28in the plea in bar, if made upon sufficient consideration, cannot contr°l the note, it is impossible that it should furnish good matter to plead in bar. The right of action, established by the note, cannot be destroyed by setting up an opposjng agreement which, by the rules of evidence, cannot be proved. The plea then was properly met by a demurrer. If it had been traversed and issue joined, it might have been a question whether the rule of evidence, excluding parolT might not have been waived. '

If the facts set up in the plea go to defeat the note, as has been argued, for want of consideration, they would have availed the party under the general issue. Though it is true that some matters which may be given in evidence under the general issue, in assumpsit, may also be pleaded in bar, yet it is not such matter as goes to deny the original cause of action. The consideration is of the very essence and foundation of the promise, and a plea, in effect, denying the consideration amounts to the general issue, and is, for this cause, ill, on special demurrer. Potter v. Stanley, 1 D. Chip. R. 243. Gould’s PI. 334, Sec. 56. This is made one ground of demurrer. The plea cannot be sustained.

The judgment of the county court is áffirmed.