
    W. B. Blakemore vs. Wm. H. Wood, et al.
    
    1,. Action Simple contract debts, payable by instalments. Assumpsit. Covenant. If an entire sum of money, due upon a simple contract, be payable by instalments, all of which Have not fallen due, assumpsit, is in general, the only remedy for the recovery of the instalments, as they severally fall due, and if the money be due upon a contract under seal, the remedy is by action of covenant.
    2. Amendment. Same. In an aetion of debt upon a promissory note, payable by instalments, some of which are not due, an amendment of the declaration asked for by the plaintiff, setting forth the note sued on, and averring a parol agreement made at the time of its execution, that upon failure of the maker to meet the first instalment when due, that the whole should be considered due, was properly refused.
    mow GIBSON. '
    This was an action of debt, instituted in the Circuit Court of Gibson county, upon a promissory note for $1,000.00 payable by instalments, of 15 per cent, every six monthsv The note is made payable six months after date, and bears date of 30th December, 1853. This suit was commenced on the 10th of July, 1854. The declaration avers the whole amount to be due. At the March Term, 1856, Judge’ Fitz-. gerald gave judgment sustaining a demurrer to the declaration, and refusing a motion by the plaintiff to amend the declaration by a count setting forth a paral 
      understanding between the parties, made at the time of the execution of the note, that upon failure of the maker to pay the first instalment when due, and interest on the remainder for six months, and to make a new note for the balance; the entire debt should be considered as due. The plaintiff appealed in error.
    T. J. Caethel, for the plaintiff.
    The paper sued on is substantially and sufficiently set out in the declaration, and the Court erred in sustaining the demurrer.
    1. If the declaration is not sufficient, the Court ought to have permitted the amended count to have been filed. The paper writing being ambiguous, pa-rol proof should have been admitted, to explain the meaning of the parties.
    2. But if the proper construction of the contract is, that the whole sum is not due, it is at least payable by instalments, and one instalment was due before the commencement of the suit? The recital that it is all due, should have been rejected as surplus-age and judgment given for the instalment that was due when the suit was brought. — 2 Parsons, on Contracts, 147; Tucker vs. Randall, 2 Mass. Rep. 283; Cooly vs. Rose, 3 Mass. Rep. 221. The instalment being 15 per cent, on the amount of the paper is sufficiently definite and' certain, to sustain the action of debt. The Court has said that debt will lie as well as assumpsit, where the paper contains on its face the means of arriving at the certain amount due.— 6 Humph., 337.
    
      M. R. Hill, for the defendants.
    It is now insisted for the first time that plaintiff ought to have judgment for the instalment due at the commencement of the suit.
    1. The action is debt for the whole. The case in 2 Mass. R., does not apply. That was assumpsit, stating the contract, averring that two instalments were due and adding that the “ defendant had become legally bound to pay the whole.” The Court decided that the latter could be regarded as surplusage, and the declaration was otherwise good for the instalments. Even if this action was different, there is nothing here that can be rejected as surplusage, and leave a declaration for instalments. Surplusage is that which may be rejected, without injury to the residue.
    2. There was no error in the refusal to allow the new count to be filed; for, 1st, No grounds were laid, showing merits, and the Circuit Judge will not be put in the wrong without them.
    3. The count proposes to lay a foundation for varying the contract by parol evidence.
   McKinney, J.

delivered the opinion of the Court.

This was an action of debt. The instrument declared on, is as- follows:

“Trenton, Dec. 30, 1853.
“ Six months after date, I promise to pay, to the order of James E. Wood, one thousand dollars, at the Branch Bank of Tennessee, at Trenton, by instad- ments of 15 per cent, every six months; for value received. “W. H. Wood.”

This note was transferred by endorsement to the plaintiff, who commenced the present suit thereon, on the 10th day of July, 1854; the first instalment, which was then due, not having been paid.

In the declaration, the note sued on is not set forth, either according to its terms, or legal effect.

It is declared on as though it were an absolute undertaking to pay the entire sum of one thousand dollars, six months from date.

The defendants demurred to the declaration and the Court sustained the demurrer. The plaintiff then moved for leave to file an additional count to the declaration, but the Court refused the motion; and rendered judgment that the defendants go hence without day and recover their costs, &c. From which judgment, the plaintiff appealed in error to this Court.

We think there is no error in the record. First: The demurrer was properly sustained, on the ground of variance between the instrument as described in the declaration and as set out on oyer. And it is clear, beyond all doubt, that if the instrument had been declared on, either according to its terms or legal effect, the action in its present form, could not be maintained. It is well settled that an action of debt cannot be maintained for the recovery of an entire sum of money, payable by instalments, until all the several in-stalments have fallen due. In such case, upon the well-established principles of pleading, resort must be had to a different form of action. If an entire sum of money due upon a simple contract, be payable by in-stalments, all of which have not fallen due, as-sumpsit, is, in general, the only remedy for the recovery of the instalments as they severally become due, and if the money be due upon a contract under seal, the remedy is by action of covenant.—1 Chitty on Pl. (9, Am. Ed.) 103, 103, 119; 2 Saunders 303, n. 6.

Secondly: The Court properly refused to allow the amended count to be filed, because it is bad in substance, and if filed would not have supported a recovery.

It sets forth the note sued on in terms, and avers a parol agreement, made at the time of the execution of the note, and as part of the contract, the substance of which is, that on failure of the maker of the note to pay the first instalment of fifteen per cent, when due, and interest on the remainder of the debt for six months; and to make a new note for the balance of the debt; the entire debt of one thousand dollars was to be considered and treated as due and payable on such default.

It is scarcely necessary to say that parol evidence of such an agreement, so essentially varying from, and contradicting the terms of the written contract, could not be received.

Judgment affirmed.  