delivered the opinion of the Court:
The declaration in this case counts on a promissory note. In the second plea filed by the appellees it is averred that the note was given to secure the performance of a certain contract between the appellants and the appellees, and that there was no other consideration for the note.
The contract between the parties is under seal, and by the terms of the contract, the appellants agreed to deliver to the appellees and the appellees agreed to receive them, 1000 head of hogs, of a certain weight and quality, at a price and by a day stated in the agreement.
To secure the prompt performance of this contract, each party executed their note in the like amount with the one sued on, and delivered the same to Levings & Co., to be by them held for the use of the party that should be damnified by the breach of the contract.
The defense sought to be interposed by this plea, is that the appellants did not deliver the 1000 head of hogs according to the agreement. To this plea the appellants filed five several replications, all of which, in' substance, are the same. It is alleged that the parties made a new contract by parol, by which it was agreed that the appellants would receive a less number than 1000 head of hogs, in full compliance with the original contract, and that the appellants did offer to deliver to the appellees the less number agreed upon, in compliance with the terms of the new contract, which the appellees refused to receive and pay for.
The court sustained a demurrer to each and all of the replications, and that decision is now assigned for error.
A number of questions are presented by the respective counsel, but the one deemed of controlling importance is, whether a contract under seal can be modified, altered and in part rescinded by an executory parol agreement. We are of opinion that it can not.
The common law rule seems to be well settled that a sealed executory contract can not be modified or in part changed by parol, so as to authorize either party to sue upon it; and the. cases that support this doctrine are numerous. Cardwent v. Hunt, 8 Tenn. 596 ; De LaCroix v. Bulkley, 13 Wend. 71 ; Eddy v. Graves, 23 Wend. 82 ; Smard v. Patterson, 3 Black. 353.
In this instance the modification of the original sealed contract was by an executory parol agreement, and it is not contended that any new consideration passed between the parties. It is certain that the note sued upon ivas never executed and deposited as security for the new parol agreement insisted upon. It had relation only to the original sealed contract between the parties.
We are, therefore, of opinion that the court committed no error in sustaining the demurrer to the several replications, and the judgment is affirmed.
Judgment affirmed.