Porter v. Pierce

On this case it must be taken for a fact found by the jury, that the note declared on and the writing signed by Huggins, were made at the same time.

Yerbal evidence was inadmissible to control or vary tho terms of the written agreement. But as the writing does not show, on its face, with whom it was made, and as it appears to have been for the benefit of Pierce, senior, though delivered to his son, the parol evidence was competent to explain that fact, if it were material, and show that the agreement was made with the defendant.

But this agreement of Huggins, whether made with' the defendant or his father, is collateral to the note, and cannot be set up to defeat this action. The note is a valid, negotiable security given on sufficient consideration. This is a contemporaneous agreement of the payee, that he will let a third person have the note, if, on settlement, any thing shall be found due from the payee to that third person. There is nothing in the agreement, from which it can be inferred that the note was to-be avoided, or defeated on any contingency. If, on the settlement contemplated, *277the payee should be found indebted to the father, then he was to let the father have the note in payment of, or as security for, what the payee might owe him. In that case the defendant would be bound to pay the note to his father, the holder, according to its tenor. On the other hand, if the settlement should show that nothing was due from the payee to the father, the note would of course be payable, according to its tenor, to the payee or his indorsee. The note is to he paid absolutely; and at all events the agreement is nothing more than a collateral undertaking, that on a certain contingency the payee will indorse and transfer it to a particular third person. Even if the agreement had been positive to forbear collection of the note, the note would still have been payable according to its terms, and an action on it could not have been defeated by the agreement. Dow v. Tuttle, 4 Mass. 414 ; Shed v. Pierce, 17 Mass. 629; Kimball v. Grover, 11 N. H. Rep. 875.

Verdict set aside.