The cause being continued nisi for advisement,the opinion of the Court was delivered at the succeeding term in Cumberland, to the following effect, by
Weston J.The note declared upon in the action before us is unquestionably not a promise to pay, at all events, to the entire amount therein expressed ; but the fund from which payment is to be made is limited to two sources particularly referred to.
It is insisted by the counsel for the defendant that upon a fail-construction of its terms, he could not be holden to pay, except upon the condition that he had first obtained the whole amount from the funds, upon which the payment was limited. But we are satisfied that this is not the fair import of the contract, and that the maker of the note must be holden to pay, if there were no other objection to the right of the plaintiff to recover, the sum he may have received, although falling short of the entire amount; the effect of the stipulation relied upon being only to absolve the maker from paying more than he might realize from the funds, if they should not produce an amount equal to the sum expressed in the note. Thus, if the defendant had failed to collect the debt from Smith, and the tea, as is probable from the evidence proposed to be exhibited, had produced less than the note, the defendant must have been holden to pay what *321he had obtained from the sale of the tea; and his liability would have been limited to that sum. On the other hand, if the debt from Smith had been paid, and the tea by reason of its unsoundness, or from any other cause, had produced little or nothing, that circumstance, according to the fair understanding of the parties, would not have the effect to absolve the defendant from his liability to the plaintiff’for the sum he had actually realized. The principle of construction adopted in this case, is in conformity with the case of Crocker et ux. v. Whitney, 10 Mass. 316.
Another ground, taken by the defendant is, that the note was given without consideration, or upon a consideration that has failed. If this position has been sustained, it is a sufficient answer to the suit, it being between the original parties. It appearing from the account stated by the plaintiff, bearing date on the same day, that the tea exceeded by a small amount the sum expressed in the note, which from the same account, appears to have been given for the tea, it is urged that the plaintiff cannot be received to prove that it was in fact given upon any other consideration. To this it may be answered, that the defendant in attempting to prove a want of consideration, relies upon what has usually been deemed an exception to the rule that parol testimony is not to be received to explain, vary, or contradict written evidence ; inasmuch as the note in question purports to have been given for value received. He therefore resting upon this equitable ground of defence, opens the whole subject matter for examination, as well in behalf of the plaintiff as of himself. Besides, the account may be considered as an acknowledgement of payment for the tea on the part of the plaintiff, and as such, like other receipts, is not governed by the rule which generally applies to written evidence. We are therefore of opinion that the plaintiff’ is not precluded from shewing that the note was founded upon other considerations than the sale of the tea; and that evidence to this effect, which was offered and rejected, ought to have been received.
To avoid however circuity of action, the note and the order having been given on the same day, and relating to one transaction, we do not apprehend it to be necessary that the defendant should be driven to his action against the plaintiff upon the *322order, but that the amount to which he would have been entitled had he pursued his remedy in that mode, may be properly allowed to him, by way of defence or offset, in the present action. In a suit upon the order, the defendant would have recovered the value of the tea, when it should have been delivered ; this sum may therefore go pro tanto in discharge of the note, and the balance the plaintiff is entitled to recover.
Thus the parties will be placed in the condition contemplated by their contract, had it been, by the delivery of the tea upon the order, carried into full effect, according to their respective stipulations; the defendant being allowed against the plaintiff all that he could have realized from the tea, if he had received it, and the plaintiff, receiving the difference between that and the amount of the note, will obtain the full benefit of all that he lost by waiving the contract with During, who was the agent of the defendant, and withdrawing the remedy by which he sought to enforce it. And this difference will be the precise sum at which the loss on the one hand, and the accommodation on the other, must have been estimated by the parties.
In order that the cause may be settled upon these principles, the nonsuit is to be set aside, and the action stand for trial.