72 Ga. 69 | Ga. | 1883
This was an action upon a promissory note made by defendant, payable to plaintiff or bearer, for the sum of fifty-five dollars and sixty cents, for value received. To this action defendant pleaded failure of consideration, because he says that said note was given for,and in consideration of the services of a certain person for twelve months, and at and before the making said note, plaintiff agreed that, if the person whose services were to be rendered to defendant died before the expiration of the year, then nothing was to be paid for such services, and that the person did die after the expiration of sixteen days. The court below held this to be a good plea in bar of plaintiff’s right to recover.
1. The only question is, was this a good defence to plaintiff’s action. One contract may be a good consideration of another contract. If one person contracts to serve another for twelve months for a certain sum of money, and at the same time stipulates that, if he should die before the expiration of the term of service, then he should receive nothing for his services, this would be a good contract, founded upon a sufficient consideration, would be legally binding upon both parties, and if the party who was to render the services should die before the term of service expired, then his executor or administrator would not be entitled to recover anything. And this contract of service would be a good consideration for a promissory note given by the hirer for such service.
2. It is contended by plaintiff in error, that parol evidence cannot be admitted to show failure of consideration of this note by showing that the consideration of the same was for the hire of the person mentioned for twelve months, and that if the person hired should die before the expiration of the term of service, that plaintiff should receive nothing for such service, because it would add to, contradict and vary the written note. The note only expresses
The expression “value received,” in this note, is a patent ambiguity, doubtless ; it does not express what value has been received by the maker. Parol evidence is admissible to explain all ambiguities, both patent and latent. Code, §§3801, 2757 ; 21 Ga., 526. Such evidence is admissible to show a failure of consideration, (30 Ga., 482), and this case is in point to show that parol evidence is admissible to show the consideration of the note sued on, and that there was a failure of the same, whatever that consideration may be; .and this case fully sustains the case of Smith and another vs. Brooks, 18 Ga., 441, in which it was decided that where a promissory note like the one at bar, expressing as the consideration value received, was given for the hire of a slave, parol evidence was admissible to show that the plaintiff agreed that if the slave died before the end of the year, he should only receive pay pro rata for the time he lived, and that the slave died before the end of the year, to sustain a plea of partial failure of consideration.
But it is insisted that the cases of Lester & Lester vs. Fowler et al., 43 Ga., 190 ; Haley, ex’r, vs. Evans, 60 Ga., 158, and Stripling vs. Holton, 68 Ga., 821, overruled the case of Smith et al. vs. Brooks, 18 Ga., 441. An examina
The court below having refused anew trial in this case, and the verdict of the jury having been for the defendant, the j udgment of the court below, refusing the new trial, is affirmed.
Judgment affirmed.