
    John Harris v. M. W. Caston.
    In an action by the payee against the maker of a promissory note, the latter cannot give in evidence a verbal agreement by the payee, to save him harmless from any loss he might sustain, by trading off the property for which the note was given. If such agreement was part of the original contract, it is inadmissible as contradicting the note; if made subsequently, it was nudum, pactum.
    
    Tried before Mr. Justice Earle, at Lancaster, Spring Term, 1831.
    This was a summary process by the payee against the maker of a promissory note for sixty dollars, made in the usual form, which had been given in payment of a horse. The plaintiff originally purchased from one Blain, against whom there were unsatisfied executions, to the lien of which the horse was liable. This circumstance was fully disclosed to the defendant, at the time of the sale to him; but it was in evidence, that after the bargain was made, and before the note was delivered, the plaintiff said to defendant, t: well, take the horse, and do the best you can with him ; and if you lose by trading him, I will make you safe: you shall not lose any thing by him.” The defendant gave his note, and took the horse; and a few days after-wards disposed of him to a person travelling into the Western country, disclosing to him the defect in the title, and the necessity of keeping the horse out of the way of the sheriff. The defendant received in exchange an old broken-winded horse, worth twenty-five dollars, and ten dollars in cash; and now resisted the payment of the excess of his own note beyond the sum of thirty-five dollars.
   The presiding Judge, held, that the alleged agreement went to prove the defendant a mere agent for making a sale, instead of an absolute purchaser; or at least that its effect was to render the note conditional, when on its face it was absolute. If it formed part of the original contract of sale, it was inadmissible as contradicting the note; if made subsequently, it was nudum pactum, and void. Decree for plaintiff for the whole amount of the note.

Clinton, for the motion.

Rogers, contra.

The defendant moved to set aside the decree, and for a new trial; but the judgment of the Circuit Court was unanimously affirmed by the Court of Appeals.  