Smith owed Kirby. Kirby owed the plaintiff. To discharge his debt to Kirby, Smith delivered to the plaintiff the note now iu suit for $1400, the plaintiff knowing that it was made for that purpose, and the plaintiff gave up a note he had against Kirby, but the evidence did not show its amount. The defence is that the note now in suit was given for a larger sum than was due from Smith to Kirby. The defendant offered to prove that when the defendant received the note, he agreed to make the deduction, if the note was too large to pay Kirby’s claim against Smith.
Held by the Court, that such testimony could not be admitted, as it would be at variance with the written contract.
The defendant then contended that it was his right to prove a partial failure of consideration and offered to do it. Held, by the Court, *583that the giving up by the plaintiff of the note he hold against Kirby, was a sufficient consideration, even though it were of an amount less than the $1400, and the evidence was rejected.
Peters, for the plaintiff.
Blake, for the defendant.
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