
    William Brown v. Robert Willis.
    Where A. made a promissory note payable to B., and to be assigned to C., upon his paying a sum of money, and performing certain labor for A., the payment of the money and performance of labor constitute the consideration of the nóte; and, in a suit upon it against A. by C., who has obtained an assignment, his non-performance may be shown to defeat a recovery.
    This is a writ of error to the Supreme Court of Morgan county
    The error complained of is the affirmance, by the Supreme Court, of a judgment in the common pleas.
    The action was originally commenced by Willis against Brown, • for the collection of a sum of money due on a promissory note.
    The bill of exceptions to tho judgment of the court of common picas discloses that, “on tho trial, tho plaintiff gave in evidences to the jury a promissory note, of which the following is a copy:
    “1 Eight months after date, I promise to pay Isaac McKitrick, or order, the sum of forty dollai’s, for valuó received by him. As witness my hand, this 4fch day of February, 1835.
    his
    “ 1 William t*j Brown.’
    mark.
    “This note being in evidence, the plaintiff rosted his causo.
    “The defendant then offered to prove, by parol testimony, that the promissory note was made by the said defendant, and ^delivered to the said Isaac McKitrick, and to be assigned to said plaintiff, and to take effect and beeomo absolute, upon tho performance, by tho said plaintiff, of certain conditions, to wit: that the said plaintiff should pay Michael Wiseman for two pairs of boat gunwales, perforin two weeks’ labor for the said Brown on a salt boat said Brown was then engaged in building, and also to perform six days other labor for the said Brown, which conditions were never performed.” To this testimony the plaintiff objected. The court sustained the objections, and ruled oul: tho testimony. To this opinion of the court, the defendant excepted.
    The court of common pleas rendered up judgment for the plaintiff, and, upon error, the Supreme Court on the circuit affirmed it.
    To reverse that judgment this writ of error is brought.
    C. C. Covet, for plaintiff in error :
    The testimony offered was sufficient, if true, to bar the plaintiff’s right of action. The promissory note on which the action was founded was incomplete at the time of its delivery to MeKitrick, and-was delivered as an escrow; and before it was to take effect and be of binding force the defendant in error was bound to perform certain conditions, which the testimony offered showed lie had not performed. It was by agreement with him made payable to McKitrick, and the conditions, on the performance of which it was to become his property, wore acceded to by him; and having taken from McKitrick an assignment of the note, knowing, as he must, that the conditions had not been complied with, to allow him to recover on the note would bo allowing him to take advantage of his own wrong; The note in his hands is of no binding force against Brown, the plaintiff in error, whatever it might have been in the hands of McKitrick; and oven in the hands of McKitrick, it could be viewed in no other light than as an escrow. Pawling et al. v. The United States, 4 Cranch, 219. *But if in no other light, can it be looked upon as of binding effect until the conditions respecting it are performed, the fact that McKitrick was acting as the trustee of both parties will justify that conclusion ; and the rule that is sometimes applied to instruments absolute on their face, and payable to the person to whom they are delivered, that a contract or deed can not be delivered as an escrow to the party himself, does not apply in cases )f trustees. 1 Esp. Nisi Prius, 222. McKitrick having assigned the note can not bring suit on it; and as it has passed into the hands of Willis, he not having performed the conditions, by the performance of which alone he was entitled to the note, the nonperformance of the conditions is a good bar to the action. Wench v. Keely, Term, 621; Bottomly v. Brooke, Mic. T., 22 Geo. 3, C. B.
    Rich & Bascom, for defendant in error:
    There is no error in the record of this caso, as complained of by plaintiff in error.
    Parol evidence is not admitted to contradict or vary the terms of an instrument in writing. Parol evidence is inadmissible to show that a note made payable on a day certain was to bo payable on a contingency only. Ros. Crim. Ev. 9; 11 Johns. 201. Parol evidence is not admissible to show a different consideration than the one stated. 1 Johns. 139. Oral declarations, though made at the time of the contract, are not admissible. 5 Conn. 451; 2 Stark. Ev. 550. A contract can not rest partly in writing and partly in parol. 1 Johns. Ch. 272.
    It is assumed by"the plaintiff in error that the note referred to in this case was passed to McKitrick as an escrow. The position is not sound. An escrow is a conditional delivery of an obligation, to take effect on the happening of some event consistent with the instrument. “A condition of delivery repugnant to the contract, whose object is to vary its terms, is no escrow.” Wright, 662.
    *The note referred to is absolute on its face. It is negotiable; is made payable to McKitrick or order, at a fixed time, and without any contingency. It is an acknowledgment of a sum of money due said McKitrick, to be paid at a future fixed day.
    The parol evidence sought to be introduced is inconsistent with the instrument, and varies the terms of the contract.
    An escrow is put into the hands of a third person, to be delivered up or not on the happening of a certain contingency.- It is never put into the- hands of the porson contracted with. The note, then, in this case, can not be regarded as an escrow.
   Read, J.

The Supreme Court erred in affirming the judgment of the court of common pleas, because the facts offered to bo proved and ruled out would, if true, constitute a complete bar to the action.

Brown executed and delivered the note in controversy to MeKitrick, as payee, to be assigned to Willis, and take effect and become absolute when Willis should pay a specified sum of money, and perform a certain amount of labor. The payment of the money, and performance of labor by Willis, formed the consideration of the note; and Willis not having paid the money, nor performed the labor, there was a total want of consideration for the note.

The evidence ruled out by the court of common pleas did not set up a parol contract different from the written one, or in any respect alter or vary it, but disclosed merely the want of consideration.

If the parol evidence went to alter tho date of tho note, by showing that it was not to take effect from tho time specified in the note itself, but from its delivery over to Willis, such evidence would bo clearly inadmissible.

The suggestion that the note was an escrow, and that the evidence proved that it was not to take effect from its date, but when it should be delivered over to Willis, on his compliance with certain terms, instead of proving want of consideration, no doubt led the court into this error.

Judgment reversed and cause remanded.  