M'Curtie v. Stevens

By the Court,

Nelson, J.

The revised statutes, 2 R. S. 406, § 77, make a sealed instrument only presumptive evidence of a sufficient consideration, and permits it to be rebutted the same as if not sealed. The testimony therefore offered, to disprove the consideration of the bond in question, was proper. The statute only altered a rule of evidence, and did not impair the contract. It gave to the defendant a new defence in law, the benefit of which was before available only by means of a cross action, or in another forum. Was a failure of consideration proved? The plaintiff was legally liable to pay the note to Yan Eps, or to the defendant, if he had not already paid it. As between him and the defendant he was the principal debtor, and of course responsible. The failure to pay the money, therefore, proves only a breach of promise, not a failure of consideration. But it is said the defendant was not bound to give the deed, unless the money was paid at the time the note to Yan Eps became due. There is no such stipulation in the condition of the bond; it is unconditional and absolute, and the special agreement thus set up is in contradiction of it. No authority is necessary to show such evidence to be inadmissible. The statute did not intend to shake the principle, that parol evidence is incompetent to contradict a contract of parties duly signed and sealed. The non-existence of the consideration was legitimate evidence under the statute ; but the defendant failed to establish the fact. On the contrary, all the evidence conceded the existence of a consideration. The failure to pay the note at a particular day in no way affected it. The promise, or legal liability to pay, and not the payment, constitutes the consideration, and that exists in full force, if it has not been already satisfied.

The defence attempted to be set up, in truth, was not a want or failure of consideration, as supposed by the counsel, but an agreement, between the parties that the defendant was not to be holden upon the bond until the consideration of the bond (the note) was paid; that the defendant was not to trust to the personal responsibility of the plaintiff for that sum. However reasonable this may be, there is no competent evidence in the bill of exceptions of that agreement. The stipulation in the condition, that the obligor shall execute and deliver to the plaintiff at the proper costs and charges of the plaintiff j a quit-claim deed, can on no reasonable construction be referred to the consideration money. These terms are obviously applicable to the expenses of the conveyance, and must be so understood.

Judgment reversed.