Basford v. Parran

Mason, J., delivered the opinion of this court. The true and only question legitimately belonging to this case, is tile construction or effect of the agreement between Mrs. Hutchins and Mr. Parran, the appellee, which related to the forbearance to sell, on the part of the latter, under his execution against Lyons. But this question in fact is noi, raised, but only foreshadowed, by the present record. By virtue of the agreement referred to, Mrs. Hutchins executed her two notes, for $750 each, to the said Parran, which were not paid upon maturity.

Subsequently another contract was entered into, which is set out in the record, between Mrs. Lyons (her husband, Michael Lyons, and her mother, ¡VIre ³⁶⁶ Hutchins, being dead,) and the said Parran, relating to the same subject matter, and referring to and making disposition of the notes executed by Mrs. Hutchins under the previous agreement. The present suit is instituted against Mrs. Hutchins’ administrator, the appellant, to recover the amount due on those notes. Evidence was submitted on the part of the defendant to show the circumstances or consideration upon which the notes were executed, and that the consideration had either entirely failed, or that the plaintiff had abandoned or forfeited the contract by renewing his process against Lyons. Thereupon the plaintiff offered the agreement with Mrs. Lyons as rebutting evidence.

To the admissibility of this agreement, as legal evidence, the defendant objected, and this is the single question before us on this appeal. The purpose of the defendant’s testimony was to show, as we have said, a failure of consideration for the