Hill v. Enders , 19 Ill. 163 ( 1857 )

Skinner, J.

This was an action of assumpsit on a promissory note executed by the defendants below to the plaintiffs, and made payable one day after date. The defendants pleaded- the general issue and two special pleas. The first special plea alleges that as to five hundred and ninety-four dollars of the promissory note sued on, the same was included in the note as the consideration of an agreement, then made, on the part of the plaintiffs, with the defendants, that suit should not be brought on the note for the period of sixty days after the making thereof; that the plaintiffs, disregarding this agreement, did not delay suit on the same for sixty days, but, before the expiration of said period, brought this suit on said note; and these facts were pleaded as a part failure of consideration.

The second special plea sets up an agreement, for a valuable consideration, made after the execution of the note and on the same day, between the plaintiffs and defendants, that the plaintiffs should not demand payment of the note for sixty days thereafter, and alleges that that period had not elapsed at the time of the commencement of the suit.

To the first special plea the court sustained a demurrer, and the second special plea being unanswered, the cause was tried on the general issue, and judgment rendered for the plaintiffs.

The defendants below seek to reverse the judgment, on the grounds that the court erred in sustaining the demurrer to their first special plea, and in rendering judgment against them while their second special plea remained unanswered.

It is true that parol evidence of a contract made at the time of, or prior to, the execution of a written contract, is not admissible to change the legal force and effect of the writing, or to make the contract different from what the writing imports. The contract sued on was to pay a sum of money on a given day, and this contract is in no manner changed by the facts set up in the first special plea.

Notwithstanding these facts, the plaintiffs could sue when the note by its terms became due, and their contract to forbear suit would be no bar, although they might be liable for damages, perhaps, for its violation. The consideration of the note, as well as the failure of the consideration, may be proved by parol.

Here, the five hundred and ninety-four dollars was a part of the note, and the consideration of this amount was the undertaking to delay suit for sixty days.

The note being sued on before the expiration of that period, in violation of the agreement upon the faith of which that sum was incorporated into the note and promised to be paid, the consideration of the note necessarily in part failed. The defendants did not get what they were to have as the consideration of this portion of the note, and it would be inequitable for the plaintiffs to have the money and withhold the consideration by them agreed to be given for it. We hold the plea substantially good, as a plea of part failure of consideration.

The second special plea constitutes no' bar to the action. Guard v. Whiteside, 13 Ill. R. 7. It was immaterial; and had issue, by traverse of the facts alleged, been joined on it, and found for the defendants, the plaintiffs would have been entitled to judgment, notwithstanding the verdict, the issue being immaterial. McCully v. Silverburg, 18 Ill. R. 306.

Judgment reversed and cause remanded.

Judgment reversed.