61 Ill. App. 121 | Ill. App. Ct. | 1895
delivered the opinion of the Court.
The pleas three and nine purported to attack the consideration for the written undertaking, but in fact sought to set up m defense an alleged verbal condition of the contract in writing. The supposed failure of consideration is based wholly upon such alleged verbal condition.
It is a general elementary rule that parol evidence is not admissible to change the terms of a written agreement, and, though there are exceptions to the rule, we see nothing in the case at bar to bring it within any such exceptions.
In Trustees v. Hepley, 28 Ill. App. 630, parol evidence was admitted without objection and the point was not mooted in the Circuit or Appellate Court.
In Hall v. Berry, 78 Ill. 161, the action was by a surety who had paid a note of the principal against a co-surety, and statements made by the principal to the sureties when their signatures were obtained to the note, were admitted in evidence, because, as the court expressly states, under the peculiar facts of the case the plaintiff was deemed to occupy the same position as the payer of the note.
In Churet v. Sweeny, 52 N. W. Rep. 546, there was no written evidence of the subscription or contributions and no reason why parol testimony should not be received.
The other authorities cited by counsel are but declaratory of the doctrine that a writing which is but in part performance of a verbal agreement does not render inadmissible parol testimony of the terms of the agreement.
Plea Ho. 4 was not good as against the averment in the declaration that the plaintiff, upon the faith of the subscription, had erected and completed a church building in accordance with the terms of the subscription.
The jury found specially that the appellant did not revoke his subscription, and counsel say that as there was a conflict of evidence upon the point they do not ask a review of that finding.
It is therefore not important to determine whether the court ruled correctly in passing upon instructions designed to advise the jury as to the effect of a revocation.
The other instructions complained of are in harmony with the action of the court in sustaining the demurrer to pleas Hos. 3 and 9.
The judgment must be and is affirmed.
