The opinion of the court was delivered by
Redeield, Ch. J.This is an action upon a note, with a certain condition annexed, in substance, that if the amount of the note is not legally due, upon certain other notes given by defendant, Magoon, to Joseph Bell, upon which certain payments had been made, this note is not to be paid, otherwise it is to be paid. This condition is clearly in the nature of a defeasance, or condition subsequent, and for the benefit of the makers of the note, and where the burden of proof would lie upon those, for whose benefit the condition was annexed. And how is this to be made out ? The words of the condition are “ legally due.” These words have a determinate signification, from which we are not at liberty to de*523part. The amount legally clue upon a note might, in various modes, he affected hy parol evidence, or by showing fraud, or want of consideration, or payments, not indorsed. But such evidence is not competent to show, that by mistake the notes were originally made too large. Such evidence no more shows a failure, or want of consideration, than when a note is given for one sum, as the price of a chattel sold, it makes out such a result, by proving that the price was in fact agreed tó be less. The evidence, in both cases, shows the contract to be different, from that expressed in the note. Of this character was the evidence offered by the defendants. That the interest was reckoned from one time, when it should have been from another, is only showing a mistake, in the note, and really establishing a different contract. And it has repeatedly been decided, by this court, that such evidence is not competent, to defeat a note, at law. Such evidence had no tendency to show the amount “ legally due ” upon these notes, and was therefore properly rejected.
If the contract, in connection with the notes, showed the mistake clearly, without the necessity of the resort to parol evidence, the defense might probably be received. But we do not understand, that this appears from the contract, in connection with the notes, For something else might have been included in the notes, not specified in the contract, or the parties might have modified the written contract, at the time of executing the notes.
This point virtually disposes of the whole case. For if the burden of proof is, upon the defendants under this condition, then the count to which the proof seems to have been applicable, was sufficient. We could, not here allow any presumption, that the verdict was taken upon the other counts, inasmuch as from the whole case, it appears the evidence was solely applicable to this count. In cases where nothing appears to show upon which count a verdict is taken, and some of the counts are good, and some had, we now allow the same presumption, in favor of the proceedings, which we do in favor of all other proceedings of this character, and which was always allowed even in criminal proceedings, that it is more likely that the verdict was taken upon the good counts, than upon the bad ones. Whitcomb v. Wolcott, 21 Vt. 368, and other cases cited in argument.
Judgment affirmed.