Dow v. Tuttle

4 Mass. 414

• Court: Massachusetts Supreme Judicial Court
• Decided: May 15, 1808
• Status: Published

Opinion

The opinion of the Court was afterwards delivered by

Parsons, C. J.

We are satisfied that the agreement, proposed by the deféndant to be given in evidence at the trial, is not to be considered as a part of the contract with the note. That is a promise to pay to the promisee, or his order, a sum of money in one year If the agreement was a part of this contract, it would be repugnant to the note, and destroy its effect. The agreement, although made at the same time, must be considered as a collateral promise of the promisee’s, for the breach of which, if there be a legal consideration, an action would lie. In chancery, it would be a sufficient ground for an injunction against the plaintiff, proving his knowledge of it' before he purchased the note. And at law, perhaps, it may support a motion to stay proceedings, by granting imparlances, [*416] until the plaintiff could put *it in suit consistent with the agreement. But, on this last point, it is not now necessary to decide.

As we consider the agreement as collateral to the note, the evidence was properly rejected, and a new trial cannot be granted.

Judgment according to verdict,

(a)

[From the evidence, it seems that the two paper writings should, between the original parties, and between the maker and an assignee with notice, have been treated as parts of one entire transaction. — Ed.]