23 Ill. 342 | Ill. | 1860
The first and only question of any difficulty in this case is, whether the first notice is sufficient to constitute a defense, if proved. It shows that the several creditors of Fullenwider met him by appointment, of whom the plaintiff and defendant were two, and in pursuance of an arrangement then agreed to by all, Walters gave his notes for the amounts of the several debts of the creditors present, as an evidence of the amounts due them from Fullenwider. That this note is one of those then given for the supposed amount due from Fullenwider to Smith.. The notice further shows that it was agreed between all parties that Walters was only to pay the several notes then given, as he should collect the debts due Fullenwider. Now, the notice nowhere states that he has not collected enough to pay all the notes, but it states that afterwards, but how long cannot be learned, the arrangement was broken up by Fullenwider, with the consent of all parties, and the contract set aside, all the parties interested, including Smith, consenting thereto. The notice does not show, except by implication, that Walters was to be empowered to collect Fullenwider’s debts.
If this notice is to be understood as stating that it was the agreement that Walters should collect Fullenwider’s debts and pay the proceeds over, pro rata, in satisfaction of the notes, as fast as he should collect the money, and that he should be liable to pay the notes only as fast as the collections would enable him to do so, it clearly states a fact which the law cannot allow him to prove. This is not an attempt to prove a want or a failure of consideration of the note, but it is an attempt to vary the terms of the note. The paper says the money should be paid on or before the 25th of December, 1859, absolutely. The offer of parol proof is, that he did not agree to pay the money, absolutely, on that or any other day, but that he only made a conditional promise that he would pay the note if he collected the money, but never without. Our statute allowing the failure or want of the consideration of a note to be proved by parol, never intended to allow parol proof to change the terms of a note which has been delivered and become operative. The rule that the writing must speak the intention of the parties, is as applicable to a note, as to any other written instrument. It is, no doubt, competent to show what the note was given for, but that alone does not constitute a defense, but in order to make out the defense, it is necessary to show that Walters did not at the time promise, as the paper says he did. This it was inadmissible to show by parol. What we said in Lane v. Sharp, 3 Scam. 566, is directly applicable to this case, and sufficiently expresses our view of the law on the subject.
But the concluding part of the notice says that the agreement was broken by Fullenwider, with the consent of all parties, and the contract set aside. What this means, we confess ourselves at a loss to understand. What agreement, and what contract, does it mean ? If the notice had previously stated that it was the agreement by Fullenwider that Walters should collect his debts, we should understand that that was the agreement broken by Fullenwider, and that he had refused to allow Walters to collect his debts, and to this the other parties consented. But it is difficult to imagine what that had to do with this note, which, as we have before seen, could not be dependent on those collections. There is no pretense that Smith agreed at that time that this note should be given up or canceled, or should not be collected. We think the court properly held this notice insufficient.
The second notice, which was held to be good, states that this note was given to Fullenwider, in consideration that Fullenwider should assign to him an amount of indebtedness against third persons, which he afterwards failed to do, and that Smith knew, this when the note was assigned to him. To prove the matter stated in this notice, Walters offered the indorser of the note as a witness, whom the court very properly held could not be allowed to impeach the note which he had assigned.
Upon the merits of the case, it is sufficient to say that the proof entirely fails to make out the defense set up in the notice.
The judgment must be affirmed.
Judgment affirmed.