In Fudickar v. Inabnet, 176 La. 777, 146 So. 745, the Supreme Court of Louisiana considered a case in which the defense was the same as that relied on in the case at bar; i. e., that there had been an independent verbal agreement to the effect that the note should be paid out of a particular fund or in a particular way. In that case the defense, as stated by the Supreme Court, was: "That the note sued on was given to plaintiff with the understanding that the note should be paid out of the proceeds of the lessee's part of the gas sold from the well."
The court recognized that in a suit on a promissory note oral evidence may be admitted to show a failure of or want of consideration, but said that the defense presented in that case was "not want of consideration for the issuance of the note, but that at the time the note was executed an independent agreement was entered into between the parties providing for the payment of the note in a manner different from that stipulated in the note itself." The court held that: "The testimony which defendants sought to offer to contradict and vary the terms of the note sued on was properly excluded."
The defense of Dr. Gillaspie is identical with that presented in the Fudickar Case that "an independent agreement was entered into between the parties providing for the payment of the note in a manner different from that stipulated in the note itself."
Dr. Gillaspie claims, according to the majority opinion, that it was understood that he "could work out the amount * * * in the rendition of professional services to Church and his family." *Page 247
In the case of Goldsmith v. Parsons, 182 La. 122, 161 So. 175,179, which my associates hold is controlling here, the court found a defense which it characterized as a plea of failure of consideration and as a claim that the note sued on had been only conditionally delivered. There the court said: "The contract and agreement being verbal, parol evidence is admissible to establish the contents thereof and to show that the delivery of the note was conditional and there was a partial failure of consideration."
Now let us consider the case at bar in an effort to discover whether the defense presented may be classified either as a plea of failure of consideration or as a contention that the note was conditionally delivered.
As to want of consideration: Dr. Gillaspie admits that when he gave the first note he received in cash the full face amount thereof, and that when he gave the second note he received back the first note which had not been paid except by the giving of the second note. Surely it cannot be said that he received no consideration for the note sued on. He received back the first note on which he would have been liable had he not executed the second.
The note was not conditionally delivered; it was given to plaintiff's husband as the obligation for which he had received full consideration. A conditional delivery is a delivery made with an agreement between the parties that it shall not become an obligation at all until the happening of some event. There was nothing of that kind involved here.
Therefore the facts bring the case squarely within the doctrine of the Fudickar Case in which the Supreme Court held that such a defense, being neither a defense of failure of consideration nor a defense of conditional delivery, could not be shown by parol. If the defense presented here is allowed to prevail, the rule of law prohibiting the contradiction by parol of the terms of a written document may just as well be written out of the law and jurisprudence of this state.
That parol evidence rule "is not only equitable, but it is so reenforced by the accummulated crest of repeated decisions that it would be a judicial sacrilege to break through it."
*Page 459I respectfully dissent.