#### Thomas Penny, Pltff in Error, *v.*Martin Graves, Assignee of John White, Deft in Error.

ERROR TO SANGAMON.

Although parol testimony is inadmissible to vary, contradict, or explain the terms of a -written agreement, a party may show by parol, that a note was given without consideration, or that the consideration has in whole or in part failed.

Parol evidence may be received, to impeach the consideration of a note, but not to vary its terms.

This suit was first commenced before a justice of the peace, and taken by appeal, to the Sangamon Circuit Court. On the trial of the cause in the Circuit Court, the plaintiff below offered in evidence, a note, with endorsements as follows:

Alton, Dec. 30th, 1842.

$52 13. Six months after date, for value received, I promise to pay George Wilson, and Andrew Beard, fifty-two, dollars—this being for 12 per cent, interest on account of hogs bought. Hiram Penny.

Endorsement.—Feb’y 23d, 1844, for value received, we assign the within to James White, without any recourse back on us.

G. Wilson.

Andrew Beard,

Endorsement.—For value received, I assign over the within note to Martin Graves, without any recourse back on me whatever. August 22d, 1849.

James White.

And closed his case.

The defendant below, then introduced Bela C. Webster, who testified that the note was in his hand writing; that he was present at its execution, and knew all the circumstances under which it was given; recollected that the note was given to the payees, who were acting for themselves and some others, (of whom, Penny had purchased hogs, which he took to Alton,) with the distinct understanding, that in case certain notes, which were given by B. C. Webster & Co., to the persons from whom Penny bought the hogs, should be paid before, or at maturity, the amount in said note specified, nor any part thereof should be required to be paid by Penny, unless the persons aforesaid, should claim interest. The payees themselves, according to his recollection, stated they should not claim any of the amount of *290the said note, unless claimed by the others. The notes of Webster & Go. were paid before maturity. No one of the persons claimed interest, so far as he knew. Several of them, when being paid, or about that time, said that they were satisfied, without any interest from Penny. The note was executed at the suggestion of Penny, in order that satisfaction might be given to the persons, of whom the hogs were purchased, with the undertanding aforesaid.

Alexander Penny was sworn, and testified to the same facts as Webster.

Plaintiff objected to the testimony of these witnesses when offered. It was then agreed by the parties, that the testimony should go the jury, and they might render a verdict in the case, which, if for the defendant, should be subject to the opinion of the Court, as to the admissibility of the testimony of Webster and Penny. The jury *rendered*a verdict for the defendant. The judge, Davis, presiding, decided that .the testimony was inadmissible, and rendered a judgment for the plaintiff below, for the amount of the principal and interest of the note.

To which opinion of the Court, excluding the testimony of Webster and Penny, and rendering a judgment for the note aforesaid, the said Penny excepted, and brought the cause to this Court.

Stuart & Edwards, for Pltff in Error.

Lincoln & Herndon, for Deft in Error,

cited 1 Greenleaf’s Ev., §275, 281; 2 Gil., 266; 12 Metcalf, 138, 275, 545; 9 *ibid.,*39; 7 Blackford, 378, 491; 1 Denio, 400; 5 *Hid.,*166.

Trumbull, J.

The difficulty in this case arises not so much in determining what the law is, as in applying it to the particular case.

The rule is well settled, that parol testimony is inadmissible to vary, contradict, or explain, the terms of a written agreement, and yet it is allowable to show by parol, that the consideration of a promissory note has wholly or in part failed, or that it was given without consideration. It is not always easy to distinguish between these two classes of evidence and determine to which, particular testimony belongs, but when that is determined, the law is well established.

*291Did the evidence offered in this instance, go to impeach the consideration of the note, or to vary its terms? If the former, it ought to have been admitted; if the latter, it was properly excluded.

The consideration of the note, was an extension of time to the maker within which to pay certain sums of money, which he was owing the payees and others, and that this was a good consideration cannot be questioned. The notes of Webster & Go., were on time, and Penny gave the note in question, in consideration that the persons he was owing would wait with him, till those notes fell due. The evidence offered did not go to show that Penny did not get the benefit of the extended time, or that it was in any manner abridged, consequently it did not tend to show that the consideration of the note had in any manner failed. The payment of the notes of Webster & Co., at or before maturity, had nothing to do with the consideration of the note in question. They were not parties to it, but it was given by Penny on account of an arrangement between him and the payees, with which Webster & Co., had nothing to do.

The effect of the parol evidence, was to show that the note,, although absolute in terms, was in fact conditional. The object of offering it, manifestly was to defeat a recovery altogether, and such would be the consequence if it were admissible. Had Penny intended, that the note should not be collected in case the notes of Webster & Co. were paid at maturity, and the persons from whom he had purchased hogs did not claim interest, he should have had such intention expressed upon the face of the-note; not having done so, he cannot now be permitted to vary or change the terms of his written contract by parol evidence, upon the familiar principle that the writing affords the only evidence of the terms and conditions of the contract. Lane *v.*Sharp, 3 Scam., 567; Mager *v.*Hutchinson, 2 Gil., 266; Ely *v.*Kilborn 5 Denio, 514; Erwin *v.*Saunders, 1 Cowen, 249; Graves *v.*Clark, 6 Blackford, 183.

*Judgment affirmed..*