Simone v. Kirschner
James Simone v. Fred F. Kirschner.
Opinion of the Court
Hinman, J.
The rule against the admission of parol evidence to vary a written instrument does not apply to the establishment by parol of an agreement between the parties entered into subsequent to the time when the instrument was executed, notwithstanding such agreement may have the effect of changing the contract evidenced by writing. Such parol evidence does *429 not controvert the original agreement but seeks to establish that the parties have, for a legal consideration, by a subsequent, distinct and separate transaction, exercised their right to change the terms of that agreement.
Shopper Publishing Co.
v. Skat Co., 90 Conn. 317 , 97 Atl. 317 ;
Barber v. Brace, 3 Conn. 9 ; 5 Wigmore on Evidence, § 2441; 22 Corpus Juris, p. 1273, § 1693. In such case the effect of the admission of evidence as to the subsequent agreement is not to vary the original written contract, but to tend to prove a new agreement. An oral agreement, made subsequent to the execution of a note, extending or otherwise changing the time of payment specified in the note, is well within this class of transactions and may be proved by parol. 10 R. C. L. p. 1034;
Low v. Treadwell, 12 Me. 441 ;
Grafton Bank v. Woodward, 5 N. H. 99;
Farnham v. Ingham, 5 Vt. 514 ;
Ferguson v. Hill, 3 Stew. (Ala.) 485, 21 Amer. Dec. 641.
Such an agreement for extension of time for payment, since it involves a promise by the holder to forbear, must be supported by a consideration, but there is such a consideration if the debtor does, or promises to do, something further or different from that which he is bound to do. The placing of the automobile in the possession of the plaintiff, as alleged in the special defense, under the conditions therein set forth, would, if established, constitute a sufficient consideration for an agreement changing the time for payment of the note.
There is error and a new trial is ordered.
In this opinion the other judges concurred.
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