— The only question presented for determination in this case is, whether the defendant could set up, by way of defence to the plaintiff’s action, a parol agreement, which seems to have been contemporaneous with his indorsement, to vary or change its legal effect. The defendant indorsed a promissory note in the ordinary mode; the note came into the hands of the plaintiff, who is not even shewn to have been a party to the contract when the note was made — he has sued the defendant upon the indorsement, and the 'defendant now seeks to defeat his recovery, by showing that the makers of the note were to have placed in his hands a sufficient amount of available notes and accounts to satisfy said note.
The same question has been repeatedly decided by this court, and so far as I have seen, uniformly in the same way. In the case of Somerville v. Stephenson & Johnson, [3 Stewart, 271,] substantially the same question was presented. In that case, the defendants in error offered to prove, in the court below, that at the time of the assignment, it was agreed, as set out, they should wait two years with the obligor of the specialty, and that if he did not pay them, that the plaintiff in error vrould be responsible. The court said, the bill of exceptions taken to the opinion of the court below, overruling an objection to the testimony, raised the *523question: “ Is it competent to vary a contract in writing, by a verbal agreement, made at the time the contract is entered into, and is such the effect of thetestimony,with regard to the indulgence of theobligor?” And,after an elaborate review of the authorities, the court came to the conclusion, that the court below erred in admitting the evidence offered. The same question had previonsly been presented in the case of Duprey v. Gray, [Minor’s Reports 357,] and in the case of Wesson v. Carroll, ib. 251, in each of which, the court held the same doctrine. Such would seem to be the established rule, between the parties to the original contract; but in this case, the note has gone, by the payee’s general indorsement, into the hands of a>third person, who may have been ignorant of any such condition as the plea sets out, if it was agreed on. The demurrer should have been sustained.
Let the judgment of the court below be reversed, and the cause remanded.