Perkins v. Young , 82 Mass. 389 ( 1860 )

Dewey, J.

We consider the note as liable to the same defence as if in the hands of the original payee. It is however an absolute promise to pay James Perkins or order one hundred dollars on demand. No defence that would not be open to such an absolute promise in writing to pay money is open here. The defendant seeks to make this absolute note a conditional one, and to establish that condition by oral evidence. The alleged condition was, that it was understood and agreed that the note was to be delivered up and cancelled on the delivery of a certain bill of sale by the defendant to said James Perkins, on his compliance with his agreement to pay a certain sum of money. It is not contended that the same has been discharged by any actual delivery and acceptance of such bill of sale, but by his failure to pay a sufficient sum of money to entitle him to a bill of sale. The parties might have made a conditional agreement and so written this promise; or they might have made it, as it is now contended the original character of the transaction was, a payment of money for which a receipt was to be given as so much paid upon a contract for the sale of a certain interest in a certain express property. But as they did not adopt that mode, but resorted to the form of. an absolute promissory negotiable note, we must suppose that the parties did not make that application of the money, and that was to be left for future action, and that in the mean time the relation of the parties as to the money received by the defendant was to be that of an absolute promise to pay to James Perkins or order that amount on demand. As the parties elected to treat this as money for which an absolute promise was given, this contract cannot now be varied or controlled by oral testimony. This subject has been often ruled upon by this court, and it is sufficient now to refer to the recent case of Allen v. Furbish, 4 Gray, 504, and cases there cited.

It was suggested at the argument, that this note being payable on demand, the defendant might avail himself of the equities between James Perkins and himself. The case seems to furnish no ground for setting up in defence to this action any equities between the original parties, arising from any other dealings or indebtedness of James Perkins to the plaintiff, except such as arose from the partnership relation under which they are alleged to have practically carried on business. These accounts have never been adjusted, and are now wholly unsettled, and cannot avail the defendant for the purpose for which they are offered.

The original consideration of the note was sufficient, being for so much money paid by the payee, for which the defendant gave him this note. Exceptions overruled.