In plaintiffs’ complaint the three notes made by the defendant are set out. The plaintiffs’ ownership is alleged and defendant’s default and judgment' demanded for the amount due thereupon. The answer of the defendant admits the making and delivery of the notes and alleges a failure of consideration by reason of plaintiffs’ neglect and refusal to deliver to the defendant the whisky for which the notes were given. Plaintiffs’ first claim upon this appeal is that the answer is inadequate, and that the court should have granted their motion for judgment upon the pleadings. This claim, however, is clearly without merit. The answer properly admitted the making and delivery of the notes and alleged a failure of consideration, which, if found, would have been a complete defense thereto. If at any time the defendant had made due demand for the balance of the whisky, in accordance with the terms of the contract, and that demand had been refused, the verdict would have been right, as the defendant might properly plead in his defense this refusal to comply with the contract as a partial failure of consideration for the making of the notes.
The defendant claims to have shown that this certificate was lost by the plaintiffs, and that further delivery of whisky was declined, except upon the giving of a bond, which could not be lawfully exacted of him. Upon the evidence, however, this could not be held, as matter of law, and no such issue was presented to the jury. But, whatever may be the rights of the defendant upon a lost certificate, the plaintiffs have, we think, a valid exception to the charge of the learned court. The defendant proved, against the plaintiffs’ objection, that at the time the notes were given there was a verbal *248agreement that the notes should he paid when the whisky was delivered. Whether or not such agreement was made seems to. have been the only question submitted to the jury, and the learned court charged the jury that, if such an agreement did exist, their verdict must be for the defendant, otherwise their verdict should be for the plaintiffs for the full amount. But no such issue was presented by the answer. Moreover, evidence of such an oral agreement would be clearly inadmissible both under the pleadings and as varying the terms of a written instrument. The notes provide for a specific date of payment and that provision could not be varied by an oral understanding at the time that payment should only be required when the whisky was delivered. For this error we think the judgment should be reversed and a new trial ordered.
All concurred.
Judgment and order reversed and new trial granted,' with costs to appellant to abide event.