The opinion of the Court was pronounced by
Williams, J.There appears to be two grounds of defence set up by the defendants, which are inconsistent with each other. They contend that the plaintiff agreed at the time the note was executed that if he failed to discontinue a certain suit, the note should be void, and also if he failed to discontinue the suit he would allow on said note all actual cost, trouble and expense which the defendant Ingham should be subject to in defending said suit.
Evidence to prove these agreements were offered and objected to, and admitted by the Court. The jury were charged to take the same into consideration and must under the charge have found the agreement first mentioned, as their verdict was for the defendant.
First question is — was the evidence admissible to show the agreement, that the note should be void on certain conditions.
The general principle is that when parties make a contract in writing, that writing is supposed to contain the *519whole contract, and no evidence is to be received to contradict, alter or explain it, or to show any thing inconsistent with the writing. This principle is too clear to be questioned, and it remains to enquire whether the Court in admitting the evidence offered, contravened this principle of law.
The note appears to have been absolute on the face of it, for the payment of money and stock, by a certain day, purports to be, and was proved to be, for a valuable consideration, and was in contemplation of law a note for the payment of money and stock, absolutely by the time therein limited. Now, although evidence was admissible to impeach the consideration, or to show no consideration, yet it was not admissible to vary the promise. The evidence which was admitted went directly to contradict this note or writing, to make it payable on a contingency only, and not absolutely, as it purported; and in this view, it directly contravened the case of Hoare et al vs. Graham et al, 3 Camp. 57; Free et al vs. Hawkins, 8 Taun. 92; Woodbridge vs. Spencer & wife, 3 Barn & Ald. 233; Mosley, assignee of Robins vs. Hanford, 10 Barn. & Cres. 729.
As the evidence was improperly received and the charge of the Court upon it incorrect, we are all of opinion that judgement of the County Court must be reversed and a new trial granted.
On the other part of the case, we are not so well agreed. it appears that the evidence was also received on the second branch of the defece in payment of the note.
It strikes me that this evidence ought also to have been rejected as militating against the same principle of law, to wit, that nothing can be added to a written agreement. It has been decided, that if there is a clear subsequent independent agreement for the discharge of a contract or varying the terms, or enlarging the time of the performance, it may be received in evidence ; but I apprehend that such an agreement made at the time when the contract was reduced to writing, cannot be received, as it would vary the terms of the contract; the written contract is supposed to be the best evidence of the whole contract. Rich vs. Jackson, 4 Br. C. C. 514; Portmore vs. Morris, 2 Br. C. C. *520219. My brethren however, (Royce & Baylies) think that there was evidence of a collateral agreement for the payment of the note in a particular way, and as such, not liable to the objection arising from the general principle, and in this view it was admissible under the general issue to show the agreement, that the costs should be applied in payment of the note, if Ingham was subject to costs by the failure of Farnham to discontinue the suit. The judgement however, is reversed and a new trial granted, for the reason stated above.