The opinion of the Court was delivered by

It appears that John E. Robertson, plaintiff, and seven other persons, were trustees of an academy, and that three of them (two of whom are appellants) executed a sealed note to the plaintiff. Action was brought upon the said note. At the trial the defendants offered evidence to show that at the time the note was given the understanding and agreement was with the plaintiff, that they were not to be bound by their signatures unless the note was *332signed by the other four trustees, and that the note was placed in the hands of the plaintiff to obtain the signatures to it of the other four trustees, which signatures plaintifF did not obtain. The Court ruled such evidence inadmissible. The only question for this Court to consider is, did the Court below err in excluding as inadmissible the evidence offered by the defendant? It appears that the question of delivery is raised, and where that question arises, evidence on that point should be admitted, especially as between the parties to the instrument.

In 4 Philips’ Ev., 538, it is said : “ As where a question arises whether an instrument was in fact delivered; if handed over to some person, whether it was delivered absolutely or only on a condition. In these, and similar instances, the execution being mostly a matter in pais, oral declarations of intention connected with the delivery may come in as part of them gestos, or, as against the party claiming in virtue of it, his subsequent declarations are competent.” There are a great variety of ways by which persons may improperly come in possession of notes and other instruments of writing; and were the rule such that parol evidence could not be admitted to show how or by what way possession was obtained, gross injustice would evidently, in many instances, be practised. Evidence was offered to show that the holder of the note had it placed in his hands by the makers to do a certain thing with it, which was necessary to its validity or its absolute delivery, and that the said holder failed to carry out that agreement. If the validity of the note, by agreement between the parties to it, depended upon a certain condition, testimony to show what that condition was ought to be admitted as betvreen such parties. The note was no more nor less than a portion of the contract between the parties. The other portion was not written, and the unwritten portion they wished to show by parol evidence. In the case of Barker vs. Prentiss, 6 Mass. R., 434, Parson, C. J., said : “But parol evidence may be given to contradict a written simple contract, or to show that the whole of it was not reduced to writing, but that it was made with certain conditions or limitations exjnessly agreed upon, but not contained in the written contract, where the action is between the original parties. Thus it is, every day’s practice, notwithstanding a promissory note is expressed to be for value received, to permit the promisor in an action by the promisee to prove that there was no consideration.”

The case of Johnson et. al. vs. Baker, 4 B. and Ald., 440, where the instrument was a deed, recognized the principle that all that *333formed part of the agreement in regard to its execution was a part of the transaction, and could be offered in evidence. The same doctrine is to be inferred from Martin & Walker vs. Stribling, 1 Spears, 23, and affirmed in Spencer vs. Bedford, 4 Strob., 96.

The motion is granted, and a new trial ordered.