The opinion of the court was delivered by
Collam^b, J.
— No exception was taken on trial to the pa-rol evidence with which this declaration must, from its nature, have probably been sustained; — no demurrer has been filed to this declaration, or motion in arrest for its insufficiency, and the court are not called on to decide on the well known rule of evidence, in law, that the written contract finally executed between the parties, is the consummation of the transaction, and furnishes more conclusive evidence of the previous or cotem-poraneous contract, than- any parol testimony can; and forbids and excludes any parol evidence" of any thing different from, or inconsistent therewith.’ This is, however, a rule of evidence *630which the party may waive. The whole question now arises on the plea in bar. — 'The defendant insists, that the plea in bar "" shows that the matter in the plaintiff’s declaration was fully adjudicated and settled, in the suit on the note. Treating the former suit as between the parties, what is the plaintiff’s claim ? He insists, that he gave, understandingly, a note which was a legal, binding, obligatory note, according to its tenor, and was so intended by the parties; but there was another substantive, cotemporaneous, independent contract, by which Evans agreed to receive the amount in bank bills, at Hydepark, which he did not do, but sold and collected the note. The plea alleges that Noyes pleaded this in bar, to the suit on the note, and the court adjudged that the plaintiff, in that suit, ought not be barred. The plea does not show that the justice found the facts stated in the plea were not proved, and therefore rendered judgment that the plaintiff should not be barred. If the judgment in that case can be legally accounted for, and yet the facts stated in the plea have been fully proved, then it is not res adjudicata; it would be merely a judgment that the facts did not amount to a bar. The result might have been produced by the parol testimony, in variation of the note being rejected by the justice; ór he might have legally decided that the facts in the plea merely amounted to an accord with tender of satisfaction, which was no defence to the note, though, if on good consideration, it might sustain a separate suit; and so have rendered judgment that the plaintiff should recover, tho’ the plea was fully proved, non obstante veredicto. That judgment is therefore no bar to this claim any more than if Noyes had pleaded, in bar to that suit any debt or claim he had against Evans, and it had been adjudged no bar, would have been a defence to such claim afterwards. This is no way inconsistent with the case Barney vs. Bliss, 2 Aik. Rep. 60. In that case the defence went on the ground that there was but one contract between the parties, and sought to set aside the note. In this case, the plaintiff’s declaration, and his former plea in bar, both set up a collateral contract, and leave both as subsisting contracts; for the agreement for payment in bills is not such a contract as Evans could have sustained action upon, and therefore was no substitution for the note, but independent.
Judgment affirmed.