
    Wise & al. versus Neal.
    In an action against the accepter by the drawee of a bill of exchange, who procured its acceptance, evidence, that the conditions upon which it was agreed to be accepted were not fulfilled, is admissible to show a want of consideration.
    On Facts Ageeed.
    Assumpsit.
   The facts appear in the opinion of the Court, which was drawn up by

Shepley, C. J.

— This suit is upon two bills of exchange, drawn by James Neal in favor of the plaintiffs, and accepted by the defendant.

Testimony was offered by defendant to prove, that the plaintiffs inquired of him by telegraph if he would accept a draft on his son for furniture. To which he returned for answer, yes, provided furniture is mine when paid for and leased;” and that the conditions named were never complied with.

Neal, pro se.

Ingalls and Stinson, for plaintiffs.

An objection is made to the admission of such testimony, that it would vary the terms of a written contract by changing an absolute into a conditional one. For such a purpose it could not be received. The plaintiffs appear to have been the originators of the contracts; and the consideration of them may therefore be inquired into between these parties. A jury, upon the testimony offered, had it been admitted, might have been authorized to find, that the drawer had no funds in the hands of the defendant, and that the plaintiffs knew that he had not. That he proposed to purchase furniture of them, and that they were not willing to sell it to him, unless the defendant would accept bills to pay for it; that upon inquiry defendant did not consent to accept bills to pay for furniture to be sold to his son, but did consent to accept bills to pay for furniture to be sold to himself and leased to his son, and that these bills were accepted for such purpose and that the plaintiffs knew that they were.

This would exhibit the bills as accepted without any consideration received by the defendant, and without any thing parted with by plaintiffs with which the defendant was connected. The testimony might present the plaintiffs as parties to a transaction, by which the defendant was induced to accept bills for a purpose impliedly refused in a dispatch to themselves, when he supposed, that he was accepting them to pay for property sold to himself. ■ To prove a want or a failure of consideration, the testimony offered is admissible.

Action to stand for trial.  