
    
      Jane Barton and P. Alexander, adm'x. and adm'r. of Bailey Barton, deceased, vs. W. W. Anderson.
    
    Plaintiffs’s intestate took from D. a sealed note for the price of a horse, which he delivered to D.; defendant afterwards was induced to execute the note, as co-obligor, on die assurance of the plaintiffs’s intestate that he should get the horse on sending for him to D., and that, if he did not get him, he would not be held responsible; defendant applied for the horse, and failed to get him. On this proof the jury, in an action on the sealed note, found for the defendant; and, on appeal, the verdict was sustained, the Court holding that the defence was a valid one.
    
      Before O’Neall, J., at Abbeville, Fall Term, 1849.
    The report of his Honor, the presiding Judge, is as follows:
    “ In this case, (which was an action of debt on a sealed note,) the defendant signed the note sometime after the first obligor had signed it. It was given for a horse called Ben Day, which had been, previous to the defendant’s execution of the sealed note, delivered to Donald, the first obligor.
    “ To induce the defendant to execute the note, Barton, the intestate, told him he would insure that he should get the horse on sending for him, and if he did not, he would not hold him responsible.
    “ The plaintiffs objected to this evidence, as adding to or altering a written contract, by parol. I thought the fact of inducing the defendant to sign by warranting that he would get the horse, which was then in the possession of another, was the consideration of the note, so far as the defendant was concerned, and therefore admissible.
    “ The defendant proved that he applied for the horse, and could not obtain him.
    “ The case was submitted to the jury, who found for the defendant.”
    The plaintiffs appealed, and now moved for a new trial, on the grounds:
    1st. Because his Honor admitted parol evidence to vary and add to a written contract.
    
      2d. Because his Honor instructed the jury that a contract of sale existed between the said defendant and Bailey Barton in his lifetime, plaintiffs’s intestate; and the said Bailey Barton had insured the delivery of the horse, the consideration of the single hill sued on.
    
      Thomson Fair, for the motion.
    
      Jones, contra.
   Curia, per

Withers, J.

The true ground of the defence relates to the execution of this contract, and not to the consideration. When that distinction is observed, it will be admitted that it excludes the fruitful topic of admitting parol testimony to vary, by addition or subtraction, a written contract, or to explain the unambiguous terms of it.

The nature of the defence is quite similar to that which was resorted to in the cases of Martin & Walker vs. Stribling, (1 Sp. 23,) and D' Aranda vs. Houston, (25 Eng. C. L. R. 516.) In both, the action was debt on sealed instruments. Stribling sought to defend himself, on the ground that Martin & Walker, by an agent, induced him to become surety for McCullough, by a stipulation that the latter should assign books of account as a counter security. Stribling would have been successful, but for lack of proof. It was not proved that the agent of the plaintiffs in that case guaranteed any such thing, though Stribling was no doubt informed that McCullough had promised to do so, and relied on it. The observation of the Court was, the proof did not make out any such fraud on the part of Caldwell.”

In the other case cited, fraud, covin and misrepresentation constituted the ground urged in the defence ; and it was unsuccessful only by reason of insufficient proof. It was, however, only a decision at Nisi Prius, before Alderson, B. The fact relied upon was, that the bond, which was the cause of action, was executed to secure the payment of £350, agreed to be given as the purchase money for a medical business ; that the plaintiff’s testator had represented the business to be worth £900 a year, and that it was worth nothing near that sum. Neither in that case nor in Stribling’s was a doubt surmised that the de-fence would be valid if the evidence supported it; that, in law, it would amount to fraud in procuring the contract.

In the case before us, the proof was, that the plaintiffs’s intestate insured that the defendant should get the horse, Ben Day, for which the note had been executed, by another, by sending for him to that other; that defendant had applied for, and failed to get him ; that, on this sole inducement, so held out, and failing, the defendant executed the note. As the jury have found the fact for the defendant, and as it constitutes a valid defence, when so established, it follows that this motion must be refused; and it is ordered accordingly.

O’Neall, Evans and Whitner, JJ., concurred.

Frost, J., absent at the argument.

Motion refused.  