Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-11-23
Lewis slmslon vs.. George W. Field.

Josiah B. Smith purchased a tract of land from
Fields and executed his note for 500, of consider
alton due the 18th of December, 1858, which note
Fields transferred to Mott By agreement on the 9th
October 1851 this note taken up and Smith made
two notes Fields one for $500 due at the same time
25th December '5S to bring the same within mag
istrates jurisdiction. This note assigned by
Field to Mott or Rol. Subsequently exchange
of land was made between Smith and Fields. by
which the atterwas to pay the former $500 and this
by agreement was paid blythe return to Smith of his
note for the amount previously given and the writ
ings were to be drawn up when that was done.
Fields failing to procure and deliver the note pro-
posed, and did execute his mole 1.-THE IN suit
TO Smith on 18th December, 1851 due Is December,
1858. for the same amount. This note assigned
by Smith TO the plaintiff in February, 1858.
The defense relied upon is. that at the time the
note was given it was agreed by the parties that
Smith TO hold it until it fell due and his
own note for the amount, which Fields had
traded Mott and be to Roln. This he insisted he
is now ready to do having taken up the note from
the holder The note of Smith, assigned to Mott by
the defendant was not taken up by them until it
was placed in the hands of an attorney for eollec-
ton, and Smith had become nsOlYent, and after the
suit had been commenced by StimstOn.
To all this evidence the plaintiff objected, and the
Court after hearing it. charged the jury that it con-
stituted no defense to the action.
1t is certainly true, that the note of Fields
not transferred until after 1t was due, 1t was liable
to all the equitable defenses in the hands of
dOrsee that IL would have been IN the hands OF the
payee But does that principle apply to this cause?
What is the defense set up? Smith agreed TO hold
the note ill due and then to in payment his
own note that Fields had assigned to Mott and the
other note had been assigned and put in SUIT. S
had failed to avail himself of the agreement to
discharge this note by the and delivery
of the other before the right of Stmston had accru
ed by the transfer of Smith TO him. It was not a
continuing right, but only extended to the 25th of
December lS5S-the time Smith endorsed the note
to the plaintiff, therefore, there was no equity
against it.
But upon another ground the defense is unavail-
ing This note Is without condition of any sort and
The attempt is to defeat it, or change the mode OF
payment by corItempOrdReOus agreement not con
tanned IN the writing. This cannot be done, as has
been settled by two receCt cases of our own IN con
tormity to all the authorities. Ellis VS.. Hamilton.
Sneed, is and Bryan VS.. Hunt, same, $40.
In the first case it is laid down that 1t cannot be
proved that there was a parol agreement at the
time, that the sued upon should be paid in any
other mode than is imported on its face" That is
precisely this case. The proof was therefore in
competent and should have been excluded, or held,
as 1t was by his Honor to present no obstacle to The
recovery of Stimston.
The failure of Smith, and the consequent liability
of Fields TO Mott endorser. was doubtless the
only cause of this attempt to save himself by trying
to defeat the plaintiff He lost his advantage by
delay, ii he could have ayailed himself of it,
which perhaps he could not, according TO the
above cited.
The judgment will be affirmed CARUTHERs.
Test NJ. D. WEIGH. Clerk.