BRYANT HOWARD et al., Trustees of J. W. Tyson, Respondents, v. JAMES STRATTON, Defendant

[Department Two. January 29, 1884.] _BRYANT HOWARD et al., Trustees of J. W. Tyson, Respondents, v. JAMES STRATTON, Defendant. Promissory Note—Consideration—Parol Evidence—Defense.—In an action upon a promissory note, parol evidence is admissible to show that it was given to secure the performance of an agreement whereby the payee conveyed certain lands to the maker in consideration that the latter should support him during the residue of his life, and that the defendant had performed the conditions of the agreement. Appeal from a judgment of the Superior Court of the county of San Diego, and from an order refusing a new trial. The action was originally brought by one Tyson, to enforce an alleged vendor’s lien upon lands conveyed by him to the defendant, and for which the latter gave the notes referred to in the opinion. The defendant offered to prove at the trial that +he conveyance was made in consideration of his agreement to support Tyson during his life, and that he had fully performed the promise. This evidence was excluded. The plaintiff had judgment, and afterward, and during the pendency of proceedings for a new trial, assigned the property in controversy to the present respondents, Howard and others, upon certain trusts. He died, and the respondents were- substituted as plaintiffs. The other facts sufficiently appear in the opinion. Leach & Parker, for Appellant. Arnold & Jones, and Graves & Chapman, for Respondents. [MAJORITY — Per Curiam.] Per Curiam. The court erred in excluding evidence tending to prove that there was an agreement between Tyson and Stratton, by which the former agreed to let the latter have the rancho on which he lived in consideration of his giving Tyson a home and support during the residue of his life, and that the notes sued on in this action were given by Stratton to Tyson to secure the performance by Stratton of said agreement on his part, and that he had performed the same. The admission of such evidence would not violate the rule which forbids the introduction of parol evidence to contradict or vary a written contract. If the notes were given to secure the execution by Stratton of a promise to support and take care of Tyson, and that promise was fulfilled, the notes were discharged, and parol evidence is admissible to prove that a written agreement has been totally discharged. There is nothing in this which tends to contradict or vary a written contract. It does not appear that an exception was taken to the ruling of the court on the defendant’s motion to strike out the testimony of John Treat, and we cannot in the absence of an exception review said ruling. Judgment and order revérsed.