
    Robert C. Heaverin vs. John O. Donnell.
    Where A, draws a bill on B. in favor of C., and B. accepts the bill in writing, and is sued upon it, he cannot show by parol evidence that the acceptance of the bill of exchange was given to C. to be obligatory, upon condition that A. finished a job of work that he had undertaken for B. The acceptance is an absolute contract to pay, and it cannot therefore be shown, by parol, that it was not absolute.
    Where a bill of exchange was described in the declaration, as dated on the 7th day of December, A. D. 1840, at Natchez, drawn by Patrick Burke on and accepted by Robert C. Heaverin in favor of John O. Donnell, for the sum of ninety dollars, and a deposition spoke of a bill drawn by Patrick Burke in favor of John 0. Donnell on the said Robert C. Heaverin, in the fall or winter of 1840, for ninety dollars, but did not give the precise date-; held, that the deposition did not sufficiently identify the bill sued upon, with the one respecting which the witness testified.
    In error from the Adams circuit court; Hon. C. C. Gage, judge.
    John O. Donnell filed his' declaration in the court below, against Robert 0. Heaverin, as acceptor of a bill of exchange. A copy of the bill is not set out in the record ; the declai'ation describes it in these words : “ For that whereas one Patrick
    Burke heretofore, to wit, on the 7th day of December,' A. D. 1840, at Natchez, to wit, at the county aforesaid, made his certain bill of exchange, in writing, bearing date the day and year aforesaid, and then and there directed said bill of exchange' to the said Heaverin, (by the name of Everin,) and thereby then and there requested the said defendant to pay the said plaintiff the sum of ninety dollars, and then and there delivered the said bill of exchange to the said plaintiff, which said bill of exchange afterwards, to wit, &c. the said defendant accepted, in writing, by the name and signature of R. C. Heaverin.”
    The defendant plead non assumpsit; and on the trial offered the deposition of one Hallock, as follows: viz. “ Deponent says he was present when Mr. O. Donnell called Mr. Heaverin in, and presented him an order drawn by Patrick Burke in favor of said O. Donnell for ninety dollars, and requested the said Heaverin to accept the same. Mr. Heaverin replied to him that he would be owing the said Burke that amount of money, when said Burke had finished a certain job of work which he had undertaken to finish for said Heaverin. Witness says that said Burke was at that time filling up a lot under the hill for said Heaverin. Mr. 0. Donnell said he wanted to stop the money in Mr. Heaverin’s hands, as said Burke was owing him, and he was fearful that he would get his pay before the work was finished, and he, O. Donnell, should lose the debt; Mr. Heaverin said he would pay the order, provided the work was finished. The parties, plaintiff and defendant, both appeared to be satisfied with the statement of said Heaverin. Witness says, from what he understood at the time, Heaverin was not then indebted to said Burke ; witness says this took place in the fall or winter of 1840. Cross-examined. The deponent says he does not know that the order sued on is the same as the one presented by O. Donnell to Mr. Heaverin. Deponent says he saw the defendant write his name on the back of the order presented.
    The court below, on motion of the plaintiff’s counsel, refused to permit the deposition to be read to the jury, and the defendant excepted.
    The jury found for the plaintiff, and the court refusing to grant a new trial, the defendant sued out this writ of error.
    
      Hewett, for plaintiff in error,
    contended,
    1. That the deposition tended to prove failure of consideration, which was admissible under the general issue. Brewer v. Harris, 2 S. & M. 88.
    2. That it was competent for Heaverin to impeach the consideration of the bill of exchange in the hands of O. Donnell, who had not taken the order in the usual course of trade. Cod-dinglon v. Bay, 20 Johns. 637; 12 Wend. R. 600; McMurran v. Soria, 4 How. 154.
    
      3. That the acceptance of Heaverin was “in blank,” and it would have been a fraud in 0. Donnell to have filled it up with an absolute acceptance; and being “ in blank,” it was competent for Heaverin to prove the conditions on which it was accepted. Chit, on Bills, 332.
    
      Sanders and Price, for defendant in error.
    The deposition of Hallock attempts to show that the acceptance was conditional, but whether of this or some other draft he does not know; no one shows that the supposed conditions of the acceptance had not in fact taken place. But all other objections to the deposition, its not being sworn to, &c. out of the way, we deny the competency of such testimony to explain a written contract, or acceptance. See Greenl. on Ev. 315, to 324, particularly § 281, and the authorities there cited. This court has also decided, that to constitute error in ruling out testimony, its relevancy must appear.
    If this position is correct, there is clearly nothing in t.he other grounds. This is a little case, involving a little sum of money, and has been delayed by little expedients, for five years. The order was given to a laborer for his wages.
    
      Thomas Reed, on the same side.
    1. Is the evidence sufficient to change the liability on a negotiable instrument of this description 1 We think not. There is not sufficient certainty in this evidence to charge any undertaking whatever, much less to change the liability of the party in this action, who, as it appears, had made an acceptance of the draft sued on in writing.
    2. The witness does not say that the plaintiff used the language said to have been used with reference to the acceptance at the time he wrote his name across the back or face of the draft.
    3. This testimony was wholly irrelevant, as the draft exhibited the acceptance, and the pleading admitted the acceptance of the draft by the defendant.
    4. The deposition ought not to have been admitted, because that the evidence sought to be admitted was parol proof of a condition made by the plaintiff at the time he made the acceptance. Chit, on Con. 81, 82, 83; Bay. on Bills, 623, and notes; 11 Mass. R. 27; 7 Pick. R. 29; Renner v. Bank of Columbia, 9 Wheat. R. 687.
    The law-writers lay down the rule upon very broad terms with regard to the admissibility of parol evidence to attack or change written instruments. There must be a defect, and that defect must be a “ patent” one, and not “latent.” Parol evidence is not permitted to explain a writing or agreement, deed, or other instrument, unless upon the face thereof there appears some patent ambiguity. See Gildartison v. Howell, 1 How. 198; FUzhugh v.Runyon, 8 Johns. R. 375; Johnson v. Still, 11 lb. 201; Parsons v. Miller, 15 Wend. 561 ; Chit, on Con. 80; 1 Phil. Ev. Cow. & Hill’s notes, 547, 555.
    In the case of Creecy v. Holly, 14 Wend. Rep. 26, the court held that parol evidence was inadmissible to change or alter the contract made by bill of lading. How much more guarded then should the courts be in admitting evidence.
   Mr. Justice Thacher

delivered the opinion of the court.

This action was instituted against the defendant as the acceptor of a bill of exchange. Upon the trial, and after the production of the bill declared on, the acceptance of which was not denied by the defendant, the defendant offered to read in evidence a deposition which went to show that the acceptance was given to the plaintiff upon a condition that the drawer finished a job of work which he had undertaken for the acceptor. The probable object of the introduction of the deposition was to take the first step in attacking the consideration for which the acceptance was given ; and a failure of consideration may be proved by parol. But in laying this foundation, it was necessary to reach back to the prime contract in writing, which was explicit in its terms, and free from ambiguity, and could not, therefore, by the long established rules of evidence, be thus approached. The contract to pay as acceptor was in writing, and therefore could not be changed by parol; the deposition went to show that there was not a positive agreement to pay as acceptor, and therefore, being parol testimony, was not admissible. 14 Mass. 154 ; 1 Cow. 249 ; 7 Mass. 518. Moreover, in respect to this case, the deposition does not sufficiently identify the bill sued upon in the action with the one respecting which the defendant speaks.

Judgment affirmed.  