101 Wis. 307 | Wis. | 1898
The alleged oral agreement by which Remington was not to be liable upon the note was no defense. A written contract cannot be varied or controlled by a contemporaneous oral agreement. Gillman v. Henry, 53 Wis. 465; Kulenkamp v. Groff, 71 Mich. 675; S. C. 1 L. R. A. 594, and note. Want of consideration is, however, a perfect defense between the original parties to commercial paper as it is to any other contract, and parol testimony is competent to prove the absence or failure of consideration. Hubbard v. Galusha, 23 Wis. 398.
In the present case the plaintiff in error had received the dental furnace, and paid in full for his share of it. The agent then w*ent to Dr. Ames, and procured Ames’s note for the other half. At this time the transaction seems to have been complete. Remmgton had received the furnace, and paid his share. He had not agreed to sign Ames’s note. The furnace was fully delivered. It was incapable of partial delivery. When the agent took Ames’s note, the title to the other half of the furnace passed to Ames. The defendant in error had no interest left in it, and could not retake it, even if the note was not paid when due. When, therefore, the agent applied to Remington to sign the note, the transaction was closed, and the property fully delivered, and there was a mere debt owing by Ames to the defendant in error. Remmgton received no consideration for his signature, nor did the defendant in error part with anything on the strength of the signature. Clearly, there was no consideration for Remmgton's signature. 1 Daniel, Heg. Inst.
By the OovH.— Judgment reversed, and action remanded with directions to dismiss the complaint.