Pollen v. James

45 Miss. 129 | Miss. | 1871

Simball, J. :

The rule upon this subject is thus laid down, by Parsons, in his treatise on Bills and Notes, vol. I, 194: “Any statements in a bill or note respecting the consideration may be explained or contradicted by parol evidence. It may be shown, notwithstanding any such statement, either that there was no consideration at all, or that the consideration was different from, that stated.” In Abbott v. Hendrick, 1 Man. & G. 791, the consideration was stated to be “for commissions due the plaintiffs for business transacted for the defendant.” The defendant pleaded that the real consideration of the note was for services to be thereafter rendered, which never had been performed. The judges in seriatim, opinions, all concur that you cannot vary or contradict the terms of the contract by parol, as, where absolute, you cannot show in evidence that the promise was contingent or conditional. All agree that, notwithstanding the expression in the body of the note “value received,” the defendant may show that there was none, and when special consideration is stated, that it has failed. Maulé, J., said: “The cases show that although a consideration is stated in the note, you may prove that it was given for a different consideration, or without any consideration at all.” 3 Phillipp Ev. (Cow. & Hill) 1458, note; Baker v. Prentiss, 6 Mass. 430; Buckles v. Cunningham, 6 Smedes & Marsh. 365.

The special objection, taken to the plea in the demurrer is, that it contradicts that part of the note which sets out the consideration. The averment is, that the note was given for a slave, warranted sound, but which was unsound and valueless. The plea says the note rests upon a different consideration, than “ money loaned, ” and the consideration has failed. If the note had omitted altogether the consideration, and the defense were a want or entire absence of consideration, the authorities are uniform, that, notwithstanding the words “value received” in the body of the note, the maker may prove a want of consideration. So, too, if the consideration be illegal, such expression does not shut off testimony of the true nature of the transaction. We think the plea is good, and the demurrer ought to have been overruled.

The declaration does not disclose a right of action against Mrs. Pollen. The married woman must not only be the owner of separate property, but the pleading must discover that her promise or engagement was in reference to a subject about which she is made competent by the statute to bind herself and her property. Whitworth & Troup v. Carter, 43 Miss. 61; Dunbar et ux. v. Meyer, Deutch & Co., ib. 685; Hardin v. Phelan, 41 ib. 114. If the plea declares the real consideration of the note, the case is precisely like Whitworth & Troup v. Carter, and falls within the doctrine of that case. But the record shows no formal disposition of the case as to Mrs. Pollen. It is inferable that the suit was, in reality, abandoned as to her, but there is no entry of dismissal. For all that appears, the verdict and judgment may as well refer to her as her husband. The issue is found for plaintiff, and damages assessed. The judgment is, that plaintiff recover from “defendant,” but which defendant is not named.

The judgment is reversed, and judgment entered here overruling the demurrer to the plea, and cause remanded for further proceedings.