It was not error to strike the defendant’s answer as amended, and the judge of the superior court did not -err in overruling the certiorari.

Judgment affirmed.

dissenting.

A sues B upon several promissory notes given by B to A in part payment of the purchase-money for a lot of land with a house thereon purchased by B from A. B admits the execution and validity of the notes, but by way pf set-off says, that at the time of the execution of the notes A agreed that in consideration of their execution he would complete the building of the house, and further agreed that until the house was so completed he would pay to B an amount equal to the interest on the notes from the date of their execution, and also in addition *279thereto the interest from that date on a mortgage due by A which he had placed upon the premises, and which B in the contract of sale had assumed. Does the agreement alleged in the set-off constitute a valid contract? Also, does it, being in parol, vary the terms of the written contract as contained in the notes?

This agreement, to my mind, sets up a valid contract, and does not violate the terms of the written contract. The execution of the notes was a detriment to B, and constituted a good consideration to support A’s promise to complete the house. A’s promise, with an added provision for a liquidation of damages in case the promise to complete the house was broken, does not .at all affect the terms of the note. The precise method of liquidation is entirely reasonable and fair. The fact that a part- of the damages is to be measured by the amount of interest accrued, and perhaps paid, on the note from B to A is merely incidental and subsidiary to the main agreement to complete the house or pay damages for failure to do so. Besides, that part of A’s promise to measure part of the damages by the interest on a mortgage of A’s which was already in existence, and not at all connected with the note in question, certainly constitutes no variation of the terms of the note.

I think defendant’s plea sets up a‘ good contract and should not have been stricken.