Aultman & Co. v. Wheeler

Adams, J.

x. Pn.oinissoE.-sr note: breach of warranty, It is insisted by the plaintiffs that the notes in suit, given after the defendants had knowledge of the breach of warranty, must be regarded as an abso- . lute promise to pay the mil purchase'price, and furthermore that such promise, being in writing, cannot be contradicted by parol.

Where a person agrees in writing to pay a certain sum of money to a person named therein, he certainly cannot be permitted to show that it was agreed by parol, at the same time, that he should not be bound by the writing. If, then, the parol agreement sought to be shown in this case would have had the effect to contradict the notes, we think that the ruling of the court that such agreement could not be shown was correct. But the defendants’ claim for damages, if they had sustained any, was of itself a cause of action. They may be considered, therefore, as admitting that their debt to the *649 plaintiffs is truly evidenced by the notes, but claiming that tbe plaintiffs are indebted to them by reason of their agreement in the warranty which they have not performed.

-2 ._. ■waiver. . The only remaining ground of plaintiffs’ objection is that ■the giving of the notes, after knowledge of the existence of their claim for damages, should be considered as a wa¿ver 0f such claim. That it would be evidence of such waiver no one would dispute. There is a natural improbability that a person would give his promissory note, and leave unadjusted an indebtedness due him from the payee. The giving of the note, then, is presumptive evidence that such indebtedness is no longer regarded as existing. The only question is as to whether the evidence is conclusive. The giving of the note is in the nature of an admission. The •act unexplained might have the effect to conclude the defendants; but, if explained, it might be quite otherwise. If in this ■case the defendants wanted additional time, and the plaintiffs wanted additional security, and either party was not ready to undertake the adjustment of the defendants’ claim for breach of warranty, and the defendants, to obviate the effect of the giving of the notes, accompanied their act with the statement that they did not waive their claim, it appears to •us that a court or 'jury would be justified in believing that -they did not. At all events, we think the evidence of waiver •arising from the giving of the notes should not be regarded as conclusive, and that the judgment of the Circuit Court must be

REVERSED.