delivered the opinion of the court.

The main question involved in this case is, whether there was such a failure of consideration of the note sued on as to discharge the defendant from liability upon it.

It appears from the evidence, that the noto was given as a part of an endowment-fund for the Female College, to be raised by contributions of individuals, which were to be secured by the note of each contributor, payable on time to be fixed by him, not exceeding five years, bearing interest from date payable annually, and renewable thereafter upon such terms as the board of trustees should prescribe. And in consideration of the note, the contributor was, by the rules and regulations of the institution, to receive a. certificate of scholarship entitling the holder to receive instruction “ in any college class” which the pupil might be prepared to enter, perpetually and free of tuition fees. It was also shown by the testimony of Mallett, the agent of the plaintiff, who took this note from the defendant, that it was his understanding that if the interest on such *678notes was promptly paid, the maker should have the privilege of renewing, and that he was in the habit of making that statement to parties giving their notes; and that witness also testified that, at the time of taking this note, he told the defendant that he understood that music was to be included in the studies to which his scholar would be entitled. It was also proved by Keeney, who was for two years president of the institution, that although the college course did not embrace music, yet the trustees resolved to allow the holders of scholarship, tuition in music, free, in addition to the usual college course, and that he always settled on that principle. It was furth'er in evidence, that the defendant sent a scholar to the institution in March, 1852, shortly after its commencement, paying twenty dollars for half the interest then due on his note; and in July, 1852, at the close of the session, that he paid the further sum pf twenty dollars for interest on his note, and was required by the president to pay the sum of thirty dollars on account of music for the scholar, the defendant at first refusing to pay that sum, and claiming the right, under his scholarship, to send a pupil to the institution free of all charges for tuition, on paying interest on his note, which he had done; but the president saying that he would not be governed by the scholarships; and the defendant then settled, as required, but stated to the president, that if they would not be governed by the scholarship, he, the defendant, would not be ; and demanded his note, which was refused.

From this evidence, it is manifest that the consideration for the note arising to the defendant, was the right to have his pupil instructed in any college class, free of charge, and that instruction in music was intended to be embraced in the course of studies. The latter branch was a material part of the studies, as it would appear from the sum charged for it, and paid by the defendant, exceeding the amount paid for all other branches of study. It was stated by the agent who took the note, that it was embraced in the scholarship, and it appears to have been allowed as a part of it by resolution of the board of trustees. It was, therefore, plainly a right to which the defendant was entitled as an essential part of the consideration of his note; and when denied, he was authorized to consider the contract as at an end, and to demand a rescission of it, as he did.

*679It is also clear, from this view, that there is no error in the action of the court in overruling the demurrer to the first and second answers of the defendant, and in overruling the plaintiff’s objection to the question propounded to the witness Mallett by the defendant, and to the admission of the record-book of the proceedings of the board of trustees of the institution. This evidence was competent upon the question of the consideration of the note, and was properly admitted.

The testimony of the witness Kilgore was immaterial, and the verdict is well justified by the evidence, independent of it. And the eleventh instruction in reference to it, aslced by the plaintiff, if material, was incorrect as a legal proposition; for the corporation certainly possessed power to release a party who had executed a note for its benefit for scholarships, which is denied by the instruction.

The refusal of the eighth instruction was not error to the plaintiff’s prejudice, because the same rule had already been stated to the jury in the third instruction for the plaintiff.

Upon the whole case, it is evident that the defendant’s failure to pay the interest upon his note, which appears to have been the main purpose and intent of the contract, was occasioned by the failure on the part of the plaintiffs to comply with that part of the contract by which the defendant was entitled to send-his scholar to the college free of any charge for instruction in music; and that this was so essential a part of the consideration as justified the defendant in claiming a rescission of the contract.

The judgment is, therefore, correct, and it is affirmed.