
    Adolphus Spring versus Samuel Lovett.
    In an action by an indorsee against the maker of a promissory note the payee is a competent witness to prove the time of the indorsement.
    In an action by the payee against the maker of a negotiable note in common form, the defendant cannot give in evidence, by way of defence, a parol agreement, that upon his giving a deed of real estate to the plaintiff the note should be given up.
    Assumpsit upon a promissory note made by the defendant, on April 28, 1828, payable to Thomas Buffum & Co., for $465‘83, with interest, on demand, and indorsed to tne plaintiff in January 1829. The cause was tried before the late chief justice Parker.
    
    To prove the time of the indorsement the defendant called Arnold, one of the house of Thomas Buffum & Co., who, though objected to, was admitted for that purpose.
    It was then proved by the defendant, that he had purchased a water privilege, and that the members of a company, of which Buffum & Co. were one, had contracted to purchase it of the defendant at a price agreed on, for which each member of the company was to pay in porportion to his interest; that the proportion to be paid by Buffum & Co. was the sum for which the note in suit was given ; that the several proprietors of shares thinking it best to procure an act of incorporation, concluded to delay taking deeds of the defendant until after the act should be obtained, but to enable the defendant to pay for his purchase, each proprietor paid his proportion to the defendant in money, and took the defendant’s promissory note therefor, upon a verbal agreement that upon his giving a deed to each proprietor of his share of the water privilege, the note should be given up. An act of incorporation of the company was obtained in June 1828, under the name of the Mumford River Association. The company were unwilling to act under their charter until an amendment could be obtained, which was proposed to be done. In February 1829, and before the amendment was obtained, this action was commenced. At that time deeds had not been delivered by the defendant to any members of the company, and there was no evidence that he had been requested to execute them, or notified in any manner that the members were ready to receive them. On the trial of the action a deed was tendered to the plaintiff, which was not received. The deeds were delivered to all the proprietors respectively, except Buffum & Co., pursuant to the agreement, and the notes which they held were given up. There was no evidence that Buffum & Co. had called for their deed, or that the defendant had offered one to them.
    
      Oct. 11th 1831.
    
      Oct. 8th, 1830.
    The cause was taken from the jury on an agreement of the parties to be nonsuited or defaulted, according to the opinion of the Court on the validity of the foregoing defence, and the competency of Arnold to testify.
    ■ B. Adams, for the plaintiff,
    contended that Arnold was not a competent witness, being one of the indorsers of the note ; and that parol evidence was inadmissible to control the defendant’s written promise. Stackpole v. Arnold, 11 Mass. R. 27 ; Barker v. Prentiss, 6 Mass. R. 430.
    
      J. Davis and C. Allen, for the defendant,
    said that the note, having been indorsed when overdue, was open to the same defence as if it were still in the hands of the payee. Bayl. on Bills (Phil. & Sewall’s edit.), 82; Sargent v. Southgate, 5 Pick. 312. To the point that Arnold was a competent witness, they cited Churchill v. Suter, 4 Mass. R. 156 ; Warren v. Merry, 3 Mass. R. 27 ; Barker v. Prentiss, 6 Mass. R. 430 ; Fox v. Whitney, 16 Mass. R. 118 ; Manning v. Wheatland, 10 Mass. R. 502 ; Knights v. Putnam, 3 Pick. 184. To the point that the parol evidence was admissible, Barker v. Prentiss, 6 Mass. R. 430 ; Stackpole v. Arnold, 11 Mass. R. 32.
   Shaw C. J.

delivered the opinion of the Court. The first question is, whether Arnold was a competent witness. It appears that he was one of the firm of Buffum & Co., the original payees and indorsers of the note, and was called as a witness by the defendant, and though objected to as incompetent, was admitted.

It was not contended that the witness was incompetent on the ground of interest, and we cannot perceive that he was-His interest, if he had any, was the other way, in favor of the recovery of the plaintiff. But it is supposed to be within the rule of policy adopted in support of the free and unrestricted circulation of bills and notes, that no man shall be permitted to defeat, by his testimony, a security to which he has given credit by his indorsement. Churchill v. Suter, 4 Mass. R. 156 ; Packard v. Richardson, 17 Mass. R. 122. But we are of opinion that the case in question is not within that rule. The object of that rule is, to prevent one who has given cur rency to a note by his name and his act in negotiating it, from being allowed to prove by his testimony, that such a security is a usurious or gaming note, or tainted with fraud, so as to render it absolutely void, as well in the hands of an indorsee, as whilst held by the original party. But this is an exception to the general rule of competency, having a tendency to exclude material evidence, and ought not to be extended further than the reasons on which it is founded require. We think the witness was competent.

This being a note payable on demand, it may be very ques tionable whether the general rule, designed to give an unrestricted currency to bills and notes, before they become due, can apply to a note payable on demand, which, strictly speak ing, is overdue from the time it is made ; but if it does, the evidence here shows that the note was indorsed long after it was due, and was therefore clearly within the principle, that he who takes a bill after it is due, takes it subject to all the objections and equities to which it was liable in the hands of the person from whom he took it. Sargent v. Southgate, 5 Pick. 317.

But this point is quite unimportant to the present case, because we are all of opinion, that the defence relied upon, were it set up against the original promisee, could not be sustained.

The facts relied upon, and to prove which the parol evidence was offered, are, that the defendant having purchased a water power, Buffum & Co. and others interested in several manufactories, to which it was believed that such water power would be auxiliary, had agreed to purchase it of him, at a price fixed ; that for reasons satisfactory to both parties, it was thought best to delay taking deeds of the defendant, but in the mean time each of the parties advanced to the defendant a sum of money to the amount of his share ; and that the note in question was thus given by the defendant, to Buffum & Co., on their advancing their share ; and that it was further agreed, that upon the defendant’s giving a deed to the promisees for their share, the note should be given up.

To admit this evidence for this purpose, would be directly repugnant to the salutary rule, that parol evidence cannot be received, to contradict, alter or control a written obligation. The note is an unqualified promise to pay a specific sum of money, on demand ; the parol evidence would make it defeasible, upon the performance of a distinct collateral act, that of giving a certain deed. The written promise is absolute and indefeasible ; the parol agreement would make it conditional and defeasible. Such a parol defeasance would manifestly alter and control the character and effect of the written obligation.

Where such supposed undertaking or agreement is coeval with the written instrument itself, it is rejected as repugnant; as where to a note on demand, it was attempted to prove by parol evidence, that it was given upon a condition that the principal should not be called for, so long as the interest should be punctually paid, the evidence was held inadmissible. Hanson v. Stetson, 5 Pick. 506.

The case alluded to in the argument, of allowing the promisor of a note to defend upon proof, by parol evidence, that there was no consideration for the note, contrary to the admission in the note, of value received, is an exception to the general rule, standing upon its own particular reasons. The same may be said of the admission of parol evidence to control a written receipt for money.

It cannot be maintained, upon the facts stated, that this note was given without consideration. The consideration was the amount of cash actually advanced ; there is no pretence that the money was advanced solely upon the agreement to have a deed, but it was upon the consideration of having a note payable on demand. It is said to be a hard case, and upon the facts shown it certainly appears to be so. But if it is so, it is because the defendant relied too confidently upon a mere temporary arrangement and undertaking, and failed to put the whole of his contract into such a form as to render it legally available.

Defendant defaulted. 
      
       See Powell v. Waters, 17 Johns. R. 176; Shamburgh v. Commagere 10 Martin, 18; Thayer v. Crossman, 1 Metc. 416; Abbot v. Mitchell, 6 Shepl 354.
     
      
      
        Ridout v. Bristow, 1 Crompt. & Jervis, 231; Foster v. Jolly, 1 Crompton, Mees. & R. 703; Moseley v. Hanford, 10 Barn. & Cressw. 729, Free v. Hawkins, 8 Taunt. 92; Woodbridge v. Spooner, 3 Barn. & Ald. 233; Rawson. v Walker, 1 Stark. R. 361; Hoare v. Graham, 3 Campb. 57; Campbell v. Hodgson, 1 Gow, 74; Bank of United States v. Dunn, 6 Peters’s Sup. Court R. 51; Farnham v. Ingham, 5 Vermont R. 514. But see Renner v. Bank of Columbia, 9 Wheaton, 581; Hill v. Ely, 5 Serg. & R. 363; Pike v. Street, Moody & Malk. 226; Hall v. Wilcox, 1 Moody & R. 58; Grafton Bank v. Kent, 4 N. H. R. 221. A memorandum in writing made upon a note contemporaneously with the note, is admissible to vary its terms. Leeds v. Lancashire, 2 Campb 205; Hartley v. Wilkinson, 4 Campb. 127; Stone v. Metcalf, 1 Stark. R. 53 and even, if made upon a separate piece of paper, as between the original par ties. Bowerbank v. Monteiro, 4 Taunt. 844; Gibbon v. Scott, 2 Stark. R 286
     