
    John Butterfield versus Francis Kidder.
    Where money was lent before the statute of usury (1783, c. 55,) was repealed, and s promissory note was given for its repayment with lawful interest, and the borrow er promised verbally to pay a usurious rate of interest for the loan ; it was held9 that the note w'as not rendered void by the verbal agreement.
    This was an action on a joint and several promissory note, signed by the defendant as surety of one Richardson, and dated before March 4, 1826, on which day the statute of 1783, c. 55. respecting usury, was repealed.
    At the trial, before Wilcle J., the defendant offered evidence tending to prove, that at the time of making the note, Richardson made a verbal promise to the plaintiff to pay him eight per cent for the use of the money, but the note was given for the money actually loaned, with lawful interest. The judge being of opinion that this verbal agreement did not vitiate the note, the defendant consented to be defaulted, subject to the opinion of the whole Court on the effect of the evidence.
    The statute of usury, of 1783, c. 55, § 1, renders void all contracts and assurances on the loan of money, on which more than six per cent is reserved. If it should be held, that where the usurious part of a contract was verbal, the legal part of it in writing was not rendered void, it would be easy to escape altogether from the statute. BU cited Fountain v. Grymes, Cro. Jac. 252, and Ord on Usury, 86, 90.
    
    
      Od. ItSfft, |OQO
    
      Hoar, for the defendant.
    
      Stearns and Joel Adams, for the plaintiff.
    The verbal contract to pay two per cent was void for want of consideration, and therefore could not avoid the written note. Ord, 48 ; Clayton’s case, 5 Co. 706. Besides, paroi evidence cannot be received to avoid a written contract. Phil. Ev. 441; Stackpole v. Arnold, 11 Mass. R. 27; Hunt v. Adams, 7 Mass. R. 518; Fitzhugh v. Runyan, 8 Johns. R. 375.
    
      Oct. 17th 1829
    
      
       See Atwood v. Whittlesey, 2 Root, 37; Willard v. Reeder, 2 M'Cord, 369 Merrills v. Law, 9 Cowen, 65; Lear v. Yarnell, 3 A. K. Marshall, (Ken.) 420; 9 Dane's Abr. 481, § 30.
    
   Parker C. J.

delivered the opinion of the Court. The verbal promise to pay eight per cent when the note was made, by which there was a promise to pay the money lent and lawful interest only, ought not to vitiate the note, for it was wholly without consideration and cannot be taken as part of the con tract, which was in writing and must be considered as evidence of the intention of the parties. Supposing the agreement to pay and receive more than six per cent, the plaintiff could recover nothing but what is promised by the note ; the additional promise was therefore wholly nugatory and cannot affect the note. If it be said, that by this contrivance the statute may be avoided, the answer is, that if that verbal promise should be carried into effect by paying unlawful interest, the taking would be an offence and the party would become liable for the penalty. But by this contract now in suit, there is not reserved or secured more than six per cent, and therefore the contract is not void.

Judgment for plaintiff. 
      
       See Revised Stat. c. 35; Scott v. L'oyil, 9 Peters, 445; U. S. Bank Waggoner, 9 Peters, 400, 401; Train v. Collins, 2 Pick. (2d ed.) 152, note I
     