II. It is not competent to show by parol that one written instrument is altered or superseded by another. Shankland v.Washington, 5 Pet. 390; Dunlap v. Munroe, 7 Cranch, 242;Wilsenberger v. Harmony Ins. Co. 56 Pa. State, 442.
III. Parol evidence is admissible to prove the contents of promissory notes that are lost. Jones v. Fales, 5 Mass. 101.
IV. A new trial will not be granted where it is evident that the verdict must be the same, for it is for the interest of all that there should be an end of litigation. The opinion of the court, in sustaining the demurrer to defendant's special plea, shows conclusively that even if admitted in evidence the verdict ought to be the same as it is, namely, for plaintiff. Assumpsit on several promissory notes. Several of the notes in suit are expressed to be for rent, and all except the two earliest in date have a memorandum indorsed that the note is to be paid according to a contract between Comer Waterman, deceased, of whose estate the plaintiff is administrator, and the defendant. The jury, if there were no evidence, confessedly might well infer from the writing and from the custody of the papers, that these memoranda were made at the time of the execution of the notes, or at least before their delivery to the deceased. The defendant claims, that the agreement referred to is an agreement in writing dated December 12, 1861, by which Comer Waterman, the defendant, complaining of his inability to pay rent, agrees not to press for the rents that may hereafter become due, but to wait until the mill runs as in ordinary times with profit, when the rents are to be paid in full as follows: the *Page 580 regular quarterly rent first, and ten per cent. on the back rents until they are paid; and this agreement is on condition the defendant was not to employ two men whom he names. This agreement, it seems, related to the rent of a mill. A lease is referred to in the agreement, but none is produced. We think there is no doubt but that the memorandum on each note is to be considered a part of it, and that parol evidence may be resorted to in order to show what agreement or instrument is intended to be referred to. Heywood v. Perrin, 10 Pick. 228; Leeds etal. v. Lancashire, 2 Campb. 205; Hartley v. Wilkinson, 4 Campb. 127; S.C. 2 M. S. 25; Effinger, Guardian, v.Richards, Administrator, 35 Miss. 540; Cholmeley v. Darley, 14 M. W. 344; Pool v. McCrary et al. 1 Geo. 319.
If the suit had been on the lease, and the defendant had claimed that the time of payment had been extended, some consideration would have been necessary to support an agreement to extend. But here the suit is on notes, and as to all notes containing this memorandum, it is the same as if the time of payment, that is, when the mill could run at a profit, had been mentioned in the body of the note, and needs no further consideration. But this agreement, so conditioned, is not a promissory note, and cannot be declared on as such. The plaintiff must declare on his special agreement, and must aver and prove that the circumstances have happened which fix the time of payment.
New trial granted. *Page 581