Bird v. Faulkner

The judgment and order should be affirmed, with costs, for the reasons assigned by the learned chief judge at the time of making the order, and the additional reason that the verdict cannot be held to be against the weight of evidence.

The opinion of the court upon denying the motion for a direction of the verdict for the plaintiff and for a new trial was as follows:

“The contract of a promissory note cannot be varied by paroi. The real consideration of it can be proved by paroi. The evidence that, at the time of giving it, the payee said he would not enforce it until, etc., can be used as a piece of testimony to show, with other facts, for what the note was given. There was no other consideration for the present note than the individual indebtedness of defendant to plaintiff growing out of the partnership (limited) affairs. Ho such indebtedness was in fact due. The apparent indebtedness was subject to the result of the liquidation of *477the affairs of the limited partnership. The mode of that liquidation was agreed upon by the subsequent partnership agreement, and until that liquidation is made, it cannot be determined that the face of the note is due by the maker. I think the defendant should have judgment on this verdict.’’