
    [Pittsburg,
    September, 28, 1827.]
    PACKER, for the use of CROOKS, against HOOK.
    IN ERROR.
    If the defendant, to prove failure of the consideration of the note on which suit is brought, gives evidence that he did not receive the alleged consideration, the plaintiff may show by parol evidence, that the real consideration was different from that alleged by the defendant, and that the defendant received it.
    Error to the Court of Common Pleas, of Warren county, in which the plaintiff in error was plaintiff below.
    The action was assumpsit by Russel Packer, for the use of N. Crooks, against Jacob Hook, on a promissory note for the delivery of thirteen thousand feet of boards. Pleas, non assumpsit, payment, want of consideration, defalcation, set-off with leave to give special matters as evidence. Replication, non solvit, valuable consideration, no set-off, and issues.
    On the trial, the plaintiff gave in evidence the following note, signed by the defendant:—
    “ Warren, March, 10th, 1810.
    “ Next fall, I promise Russel Packer to deliver him at my mill thirteen thousand feet of good merchantable boards. The above boards are for the balance due for a mill frame, and two sets of running gears, that I bought of the said Packer.
    
    
      Jacob Hook.”
    
    The plaintiff then proved the price of boards at the time and place mentioned in the note.
    The defendant gave in evidence a bill of sale to him, signed by Russel Packer, dated June 17th, 1S20, and a writing on the same paper, dated March 10th, 1821, which were as follows:
    “For value received, I do hereby sell and convey unto Jacob Hook, a quantity of mill timber, viz: a mill frame, and two sets of running gears lying on the bank of Benjamin Swisher’s cove, in Conewango township, being the same timber that was conveyed by Benjamin Darling to A. B. Hartrough, and by the said Hartrough to me; and I do authorize said Hook to take possession of the said timber. I do hereby acknowledge, that I have delivered the same to him.
    
      Warren, June, 17th, 1820. Russel Packer.”
    
    “ Warren, March,' 10th, 1821.
    “ I do hereby agree, that if Jacob Hook should have any trouble in getting and keeping possession of the above frame and running gears, that I will pay all damages, pay all costs of suit, all trouble and expense that the said Hook may have, in getting possession and keeping the same. Russel Packer.”
    
    
      The defendant then proved, by the testimony oí .Benjamin Darling, that there was a whole mill frame, and sets of running gears as mentioned in the said writings.
    The plaintiff offered to prove that all the timber that was meant to be sold to Hook, the defendant, was what was then on the ground; that defendant knew there was not a full mill frame and two sets of running gears, and that the writings, dated June, 17th, 1820, and 10th of March, 1821, signed by Russel Packer, were obtained by fraud, and only intended as a guarantee against a supposed claim or intent of Darling, to seize the same; objected to by the defendant, and the court overruled the evidence; the plaintiff excepted.
    The plaintiff offered to prove by parol evidence, that at the time the note was given by the defendant, he knew of the deficiency of the timber, and that it was left to his own generosity, to fix the balance that he ought to give for it, as it was, and that he accordingly gave this note for the balance he ought fairly to pay to the plaintiff. This evidence was objected to by the defendant: the objection sustained, and evidence overruled; the plaintiff excepted.
    
      Galbraith, for the plaintiff in error.
    
      Selden, contra.
    
   The opinion of the court was delivered by

Duncan, J.

This was an action brought on a writing given by the defendant to the plaintiff, promising to deliver thirteen thousand feet of good merchantable boards; the above boards in full for the balance due for a mill frame and two sets of running gears bought from Packer.

The defendant gave in evidence a certain writing of Packer, dated the 17th of June, 1S20, and another writing, of the 10th of March, 1821, and then proved that there were not delivered to him a whole mill frame and two sets of running gears. The plaintiff then offered to prove, by parol evidence, that all the timber intended to be sold to Hook was then on the ground, and that the writing was obtained by fraud, and only intended as a guarantee against a supposed intent of Darling to seize the same; and further offered to prove, by parol evidence, that at the time the note was given the defendant knew of the deficiency, and that it was left to himself to fix the fair balance, and that he did fix this amount as the balance he ought to pay.

Now, as the defendant had given evidence that there was not a full mill frame and two sets of running gears, and therefore the consideration in part failed, the plaintiff ought to have been permitted to show that the note was really given for the value of the timber received, and nothing more; and that on his own estimation. The defendant says, “I ought not to pay my note, because it was given for that which I did not receive.” The plaintiff, to rebut that, says, ££I will prove that your note was only given for what 3>-ou did receive.” The defendant knew at the time the timber he had got: he knew it was not the full price of a mill and gears, and he-gives his notes for the balance. If there was ambiguity, it was a latent one, which might be explained by parol evidence, and this inartificial instrument was not free from ambiguity. The bill of sale of the 17th of June, 1820, fixes no price for the timber; the notice does, and it was for this balance of the timber delivered, after it was delivered, and after it was proved not a full frame of a mill, &c., the parol evidence to rebut the defendant’s equity, to explain that which was ambiguous — what was meant by the balance due, was offered. The evidence ought to have been received.

Judgment reversed, and a venire facias de novo awarded.  