
    Kelso vs. Frye.
    
      April 11.
    Debt on ⅞ note which was given for ⅛ clock, a bond warranting the clotk,andapro. mile that if the clock íhould not prove good that they would either make it good or replace a good one before the money íhoujd l'e paid, is not adnvifiolfc to impeach ihe validity ct thb
    For a breach of its ftipula-tions it forms the baüs of a feparate a&ion.
   OPINION of the Court, by

Judge Qwsxey.

Kelso, the assignee of Dunham, Grove & Co. brought this suit for the purpose of recovering of Frye the amount of a note given by him to the company; and the only question we shall notice is, whether the court erred in permitting the evidence introduced by Fry for the purpose of impeaching the validity of the note?

The note appears to have been given to the company for the price of a clock sold to Frye, and the evidence objected to is a writing under the hands of the company, of the same date of the note, warranting the clock, and containing a promise that if the dock should riot prove good, that they would either make it good, or replace a good one, before the money should be paid.

This writing we are of opinion was inadmissible for the purpose it was introduced. For a breach of its stipulations it might form the basis of an action against the company; hut it contains nothing in any manner conducing to show an insufficient or vitious consideration of the note. The sale of the dock, and not a performance of the stipulations contained in the writing, was the consideration of the note; and as the, writing is a distinct instrument from the note, although it contains a promise to furnish a 'good clock before a payment of the note, a performance of that stipulation cannot be construed a condition precedent to the payment of the money. n .

The writing, therefore, ought not to have been ádmit-ted in evidence; and for that cause the judgment must be reversed with costs, the cause remanded and further proceedings had not inconsistent with this opinion.  