stated the case, and delivered the opinion of the court.
Thе defendants in error were the plaintiffs in.the court below. Thе action was upon a promissory note made by Jehl & Brother to Specht, and by him indorsed to .Howard, Sanger & Cо., the plaintiffs. The makers and indorser lived in Memphis. The indorseеs lived in the city of New York, and the note was made and indorsed there. No place of' payment was mentioned in the note. At its maturity the makers were sought in the city of New York, and. not being found, the note was protested for non-payment, аnd notice was given by mail to the indorser. Upon the trial, after proof of the protest and notice, the plaintiffs offered to prove that at the time the note was drawn, it wаs agreed' between the makers, and Howard, Sanger & Co., that it should be made payable in the city of New York, and that thе place of payment was omitted by the mistake of thе draughtsman. Specht objected to the'admission of the testimony. The objection was overruled and he excepted. The-agreement and mistake were proved. Specht then offered to 'prove' that he had not consented that the note should be made payable in New York. The testimony was injected and he excepted. -He then аsked the court to rule that the plaintiffs’ evidence showed such a change in his contract of indorsement as dischаrged him from liability. The court refused so to rule, and he excеpted. The court then withdrew from the jury the evidence relаting to the parol agreement, and ruled that the proof of demand and notice was insufficient to create аny liability on the part of the defend- -. *566 ant. Specht excepted to the withdrawal of the evidence as to the рarol agreement.' The plaintiff's then proved that, after the maturity'of-the note, Specht, with a full knowledge of the dеfective demand and notice, promised to pay thе note. • No objection was made to the admission of this testimony, nor to the charge of the court upon the subject. The jury found for the plaintiffs and judgment was rendered accоrdingly.
• The error complained of is, that the court withdrew from the jury the1 evidence touching the parol agreement аs to the place of payment made contemрoraneously with the drawing and execution of the note. Thе plaintiff in error insists that, being a surety, it altered and discharged his сontract.
The evidence was improperly admitted аnd was properly withdrawn. The agreement was a nullity and cоuld not in auy wise affect the rights of either of the parties. “ It is а firmly settled principle that parol evidence of аn oral agreement alleged to have been madе at the time of the drawing, making, or -indorsing of a bill or note, cannot be permitted to vary, qualify, or contradict, to add tо or subtract from the absolute terms of the written contraсt-.” * †An agreement between the creditor and principal must, to exonerate the surety, be one “binding in law upon the parties.” †
Judgment aeeirmed.