
    KELLEY v. GUY.
    1. Promissory Notes — Want of Consideration — Evidence.
    Want of consideration for a note executed by defendant to decedent in her lifetime is established where it is shown that the note was executed merely as a memorandum of a previous transaction, whereby decedent paid to defendant the amount of the note in consideration of his agreeing to use the same in the construction of a house where she might make her home and receive maintenance and support, which agreement was carried out to the satisfaction of decedent.
    2. Same.
    A want or failure of consideration may always be shown in defense of an action on a note.
    Error to Berrien; Coolidge, J.
    Submitted January 4, 1898.
    Decided March 1, 1898.
    Trover by Samuel H. Kelley, administrator with the will annexed of the estate of Maria A. Rowe, deceased, against Juan M. Guy. From a judgment for defendant, plaintiff brings error.
    Affirmed.
    Trover for the conversion of a promissory note for $500, executed by defendant to Maria A. Rowe, dated October 25, 1893, and payable five years after date. The case made by the defendant’s testimony is that Mrs. Rowe, who was a sister of Mrs. Guy, came from her home in Ohio, in the summer of 1893, to visit the defendant and his wife at Benton Harbor. She was anxious to secure a home for the remainder of her life with her sister and her husband. It was finally agreed that the defendant should build a house, that Mrs. Rowe should contribute $500 for that purpose, and, in consideration therefor, should live with, and be taken care of by, the defendant and his wife. The house was built during that summer; the agreement carried out; Mrs. Rowe had her home with, and was taken care of by, the defendant until her death, in July, 1894. The entire arrangement rested in parol, and, when Mrs. Rowe paid the money, Mrs. Guy proposed that her husband execute a note to Mrs. Rowe, so that, if Mr. Guy died first, she would have something to show that she had let ‘him have the money. Mrs. Rowe did not want the note, but finally took it, placed it in an envelope, and wrote on the outside, “Juan, take this.” The evidence justified the finding by the jury that this arrangement was made, that it was carried out to the satisfaction of Mrs. Rowe, that she did not want the note, that she wanted it given up to Mr. Guy, and there was evidence tending to show that she understood that he had taken it as she directed. Soon after her death, defendant took the note in the presence of others, and, after^the appointment of the administrator, told him the facts. He was satisfied of their truth, did not include the note in the inventory of the estate, and did not bring suit until compelled to by some of the legatees. Verdict and judgment were for the defendant.
    
      Samuel H. Kelley (Edward Bacon, of counsel), in pro. per.
    
    
      G. M. Valentine, for appellee.
   Grant, C. J.

(after stating the facts). It is contended on behalf of the plaintiff that the consideration for this note was money loaned, and that parol evidence was inadmissible to show that the consideration was otherwise, under the authority of Phelps v. Abbott, 114 Mich. 88, and authorities there cited. It is contended by the defendant that the note was given up to him by the deceased, and that it was void for want of consideration. The court instructed the jury that there was not sufficient evidence of delivery to constitute a gift, but submitted the case to them upon the theory that there was no consideration.

A want or failure of consideration may always be shown in defense of a promissory note. If it were established that the money which defendant obtained from Mrs. Rowe was the consideration for the note, plaintiff’s position would be sound; but, according to the evidence on behalf of the defendant, this was not the consideration for the note, but was the consideration for defendant’s agreement to build a house, and provide a home and maintenance for Mrs. Rowe, which agreement had been executed by him up to the time the money was paid and the note given. The $500 could not serve as a valid consideration for both agreements. If it was paid pursuant to the first agreement, then there was no consideration for the note.

We think the case was properly submitted to the jury. Judgment affirmed.

The other Justices concurred.  