Kelley v. Guy

(after stating the facts). It is contended on behalf of the plaintiff that the consideration for this note was money loaned, and that parol evidence was inadmissible to show that the consideration was otherwise, under the authority of Phelps v. Abbott, 114 Mich. 88, and authorities there cited. It is contended by the defendant that the note was given up to him by the deceased, and that it was void for want of consideration. The court instructed the jury that there was not sufficient evidence of delivery to constitute a gift, but submitted the case to them upon the theory that there was no consideration.

A want or failure of consideration may always be shown in defense of a promissory note. If it were established *45that the money which defendant obtained from Mrs. Rowe was the consideration for the note, plaintiff’s position would be sound; but, according to the evidence on behalf of the defendant, this was not the consideration for the note, but was the consideration for defendant’s agreement to build a house, and provide a home and maintenance for Mrs. Rowe, which agreement had been executed by him up to the time the money was paid and the note given. The $500 could not serve as a valid consideration for both agreements. If it was paid pursuant to the first agreement, then there was no consideration for the note.

We think the case was properly submitted to the jury. Judgment affirmed.