
    William Edgar Bird, Appl’t, v. Frank G. Faulkner, Resp’t.
    
      (New York Superior Court, General Term,
    
    
      Filed June 23, 1887.)
    
    1. Promissory note—Evidence—Real consideration may be shown by PAROL.
    The contract of a promissory note cannot he varied hy paroi, hut the real consideration of it can he proved hy paroi.
    3. Same—Admissibility of evidence.
    Evidence that at the time of giving a note the payee said he would not enforce it until, etc., can he used as a piece of testimony to show, with other facts, for what the note was given.
    Appeal from a judgment in favor of the defendant, entered upon the verdict of a jury rendered at a trial term, and from an order denying the plaintiff’s motion for a new trial. By stipulation between the parties the court reserved the right to enter an order changing the verdict for the defendant into one for the plaintiff, if so advised.
    The parties to this action were members of the firm of Bird, Faulkner & Co., which the successors were of Faulkner & Bird (limited), under a written agreement of partnership, which contained the following provision:
    “Inventory of stock to be taken on January 1, 1885, and and if it shall then be found that the business has not, to that date, paid for its running expenses, together with the cash that has been withdrawn by the said members of the firm, then in that case William Edgar Bird to have the option whether he will continue the business to June 2,1885, or wind it up on January 1,1885. When the true assets of the aforementioned firm of Faulkner & Bird shall be ascertained on June 2, 1884, then what the books show as due to William Edgar Bird shall be credited to him on the books of Bird, Faulkner & Co., and will draw interest at six per cent per annum from that date; furthermore, the indebtedness of Frank Gr. Faulkner and Theodore Lyell Bird, as it may in cash appear on the books of Faulkner & Bird, shall remain an indebtedness to William Edgar Bird, but without interest, during the term of this copartnership.”
    
      The firm of Faulkner & Bird, limited, was composed of the parties to this action and one Theodore L. Bird. It appears that when that firm was dissolved by mutual consent, on June 2, 1884, a balance sheet was made upon estimates of the value of the assets of the firm, in which there appeared chargeable to the defendant’s account as a partner on the partnership books a certain amount; that at the same time that the existence of the old firm was terminated, the new firm of Bird, Faulkner & Co. was formed by the same parties; that the entire assets of the old firm were turned over bodily to the new firm, which assumed the liabilities and continued the business for another year, up to June, 1885; that after the old firm was terminated and the new one formed as aforesaid, the defendant gave the plaintiff the note in suit for the amount which it appeared on the said balance sheet was chargeable to his account.; that at the time, the defendant objected to giving it, and that the plaintiff assured him that it was only a memorandum which would not be enforced by him, and that the matter would be settled at the end of the co-partnership, meaning the final settlement; that it would be made up then, and if at such settlement anything was coming to the defendant, it would be credited to him upon the note.
    The note was dated June 2, 1884, payable one year after date and for the sum of $6,110.34. The defendant admitted giving the note, but claimed that it was a memorandum note; that as the affairs of the partnership of Bird, Faulkner & Co. had not been settled at the time this action was commenced, it was prematurely brought.
    
      John P. Adams, for app’lt; J. H. V. Arnold, for resp’t.
   Per Curiam.

The judgment and order should be affirmed, with costs, for the reasons assigned by the learned chief judge at the time of making the order, and the additional reason that the verdict cannot be held to be against the weight of evidence.

The opinion of the court upon denying the motion for a direction of the verdict for the plaintiff and for a new trial was as follows:

“The contract of a promissory note cannot be varied by paroi. The real consideration of it can be proved by paroi. The evidence that, at the time of giving it, the payee said he would not enforce it until, etc., can be used as a piece of testimony to show, with other facts, for what the note was given. There was no other consideration for the present note than the individual indebtedness of defendant to plaintiff growing out of the partnership (limited) affairs. Ho such indebtedness was in fact due. The apparent indebtedness was subject to the result of the liquidation of the affairs of the limited partnership. The mode of that liquidation was agreed upon by the subsequent partnership agreement, and until that liquidation is made, it cannot be determined that the face of the note is due by the maker. I think the defendant should have judgment on this verdict.’’  