
    Payne vs. Ladue.
    A note cannot be contradicted or controlled in its legal effect, by oral evidence that it was to have no validity except in a certain event.
    Upon the settlement of a slander suit brought by L. against P., the. latter gave up certain notes against the former, discontinued certain suits, and agreed to sign a retraction of the slander ; and L., in consideration thereof, executed to P. a note, which he delivered to P. on condition that, it was to be returned if the retraction was not signed, and to have no validity till then: Held, that though P. failed to sign the retraction, the note was not void, and he might maintain an action, upon it.
    
      Semble, that had the settlement of the slander suit constituted the sole consideration for L.’s note, P.’s failure to sign might have operated as a defence, on the principle of showing want or failure of consideration.
    But where, as in this case, the consideration is composed of several things, and the defendant has received a part of it, the only way in which complete justice cam be done, is by leaving each party to his action.
    Whether the failure of P. to sign, could come in to affect the amount of damages, quere.
    
    Where the defendant insists at the circuit, that the facts proved by him, constitute an entire bar to the action, and, being overruled by the judge, excepts; he cannot, under such an exception, raise the question at bar, whether the facts ought not to have gone in mitigation of damages. •
    Assumpsit, tried at the Albany circuit, .in December, 1839, before Cushman, C. Judge. The action was on a note, dated Oct. 24, 1837, by which the defendant, “ for value received,” promised to pay the plaintiff $110, in leather, to be delivered on demand in Albany. The leather had been demanded, and the defendant refused to pay, on the ground that the note was void.
    The case was this: At the time of giving the note, there were three suits pending between the parties, two in favor of the plaintiff against the defendant, and one in favor of the defendant against the plaintiff: the latter was for slander. The .plaintiff also held two notes against the de-fendant, amounting to $220. The parties met and agreed on a settlement. All the suits were to be discontinued; the plaintiff was to give up his two notes, and to sign a retraction of the slanderous words; and the defendant was to give his note for $110, payable in leather. The note in question was thereupon made by the defendant, and delivered to the plaintiff; all of the suits were discontinued, and the narties executed mutual receipts of all demands. The two notes which the plaintiff held against the defendant, were not then delivered up, but were afterwards delivered to, and accepted by the defendant. At the time of the settlement, a written retraction of the slanderous' charge- was prepared to be signed by the plaintiff. He said he would sign it, but wanted first to see his brother. According to the testimony of one witness, the plaintiff said, if he did not sign the recantation, he would return the defendant’s note; and the witness added, the note was to have no validity as a note, until the paper was ' signed—that the condition on which the plaintiff was permitted to take the note, was, that he should return it unless he signed the recantation. The defendant refused to pay the note, because the retraction had not been made. He insisted that the facts proved constituted a bar to the action. The judge charged the contrary, and the defendant excepted. Verdict for plaintiff. The defendant now moves for a new trial on a bill of exceptions.
    S. Stevens, for defendant.
    
      J. Holmes, for plaintiff.
   By the Court, Bronson, J.

The note could not be contradicted, nor could its legal effect be controlled, by oral evidence, that it was to have no validity except in a certain event. (Erwin v. Saunders, 1 Cowen, 249, and cases there cited.)

But I think the facts proved, might, under certain circumstances, amount to a defence, by way of showing a want or failure of consideration. If the note had been given upon the sole consideration that the plaintiff should sign a retraction of the slander, or do some other act, which had not been performed, I see no reason why that matter should not be set up as a defence. But here there has only been-a partial failure of the consideration. The plaintiff discontinued his two suits, and gave up" two notes against the defendant, amounting to $220. The defendant has had a part, at least, of the consideration on which the note was given, and he is not, therefore, at liberty to say the note is wholly void. In such cases, each party may have an action. That is the only way in which complete justice can be done to both. (See 1 Saund. 320, note 4. Tompkins v. Elliot, 5 Wend, 496. Betts v. Perine, 14 Wend. 219.) It is unnecessary to consider whether the facts proved, could properly go to the amount of damages, as no such question was made on the trial. The defendant insisted that the action was wholly barred, and that is the only point on which the judge passed.

New trial denied.  