I concur with Mr. Justice Laughlin that there must he a new trial of this case on the ground that there was evidence that the note of June 13, 1907, was without consideration, and that the note of January 13,1908, was also without consideration, for the reasons stated by Mr. Justice Laughlin in his opinion. I dissent, however, as to the competency of the evidence to affect the liability of the defendant as to the second note sued on.
The evidence is undisputed that by that note .the defendant promised to pay to the plaintiff the sum specified; that that note • was actually discounted for the benefit of the defendant; that he received the proceeds thereof; and that the rule that parol evidence could not be received to contradict the express provisions of a written instrument prevented the defendant from proving that the note by which he promised to pay the plaintiff a sum of money at a specified time was without consideration because when the note was given the plaintiff promised to pay it when due.
Scott, J., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.