Marsh v. Lisle

34 Miss. 173 | Miss. | 1857

Fisher, J.,

delivered the opinion of the court.

The plaintiffs below brought this suit in the Circuit Court of Adams county, upon a promissory note in the following words: “ Natchez, 2d February, 1852. Twelve months after date of this, I promise to pay to Marsh & Pendleton or order, the sum of four hundred dollars, being in payment for old machinery bought of Swann & Abbott. Maurice Lisle.” The facts as attempted to be shown by the testimony which -was ruled out by the court, are as follows: Swann & Abbott being indebted to Marsh & Pendle-ton in the sum of $400, and Lisle being indebted to 'Swann & Abbott in a like sum, it was agreed that he should execute the note above named to the plaintiffs, and be discharged from his indebtedness to Swann & Abbott, and that they should also be discharged from their debt to the plaintiffs. This was virtually a payment by the defendant of the debt which he owed Swrann & Abbott, as the arrangement was, as to them, equal to so much money actually received from the defendant.

But it is said that the effect of the evidence was, if admitted, to contradict or vary the terms of the written contract. We disagree with counsel on this point. The object was to show the true consideration of the contract, without contradicting anything expressed on the face of the note. The defendant admitted, at the time of the execution of the note, his liability to pay to Swann & Abbott, and being released from this liability, he undertook to pay (at their request) to the plaintiffs, who agreed to release their debt on Swann & Abbott in consideration of the "defendant's undertaking. There is nothing in this statement either contradicting or adding to the terms of the note, but only showing what preceded or led to its execution.

It was, however, urged as a defence below, that the entire consideration of the note had failed, on the ground that the old machinery purchased of Swann & Abbott was, after the defendant’s purchase, sold under a judgment, which was a lien upon the machinery at the date of the sale. This defence cannot avail the defendant. By executing the note he assumed the liability of Swann & Abbott to the plaintiffs, and he can consequently make no defence which they (Swann & Abbott) could not make, if they had continued the plaintiff’s debtors. The question is not what was the nature of the consideration moving from Swann & Abbott to the defendant, but what the plaintiffs were induced to surrender in consequence of his undertaking.

Under this view of the case, we are of opinion that the court below erred in refusing the new trial.

Judgment reversed, and new trial granted.