£ the absolute promise of the defendants, contained in said ‘ note, to a promise conditional, by the introduction of parol ‘ evidence, or evidence extrinsic of said note ; that it does £ not appear in and by said plea when and where said horse ‘ died, or became useless, whether before or since the com- ‘ mencement of this suit; that said plea amounts to the £ general issue, and is in other respects informal, uncertain, ‘ and insufficient.’

The county court decided that the special plea was insufficient, and the defendants excepted to the decision.

I. The defendants contend that it was competent for them to show by parol evidence the contract set up in the plea in bar of the plaintiff’s action. 3 Stark. Ev. 1049. This principle is fully sustained in Saunders v. Howe, 1. Chip. Rep. 363; and it is recognized in 3 Stark. Ev. 1002, (n. 8.)

II. The consideration for which the note was given had wholly failed. The consideration for the note was a sound horse, but the horse proved to be unsound and worthless. No consideration had therefore passed for the note.

In point of pleading, that which would give the action of assumpsit to recover back money when the consideration had failed, would be a good defence against a note where the consideration for which it was given had failed.

So, as is always the case, where the vendor warrants the title of the property he sells, if the title wholly fails, such failure may always be given in evidence to defeat a recovery on a note given for the property.

The note is for value received, which is prima facie evidence only, for the payee, but subject to explanation on the other side. The explanation has been made. The consideration was to be a sound horse, but if worthless the parties understood the consideration would then have failed.

III. This matter is properly pleaded in bar. 1 Chit. PI. 497, 476. Defendant is at liberty to plead ££ want of sufficient consideration,” although the same may be given in evidence under the general issue.

1. The plea is bad as it seeks to convert the absolute promise of the defendant into a conditional promise, by parol evidence.

The plea does not set forth a subsequent agreement founded on a new consideration, but rests on a promise contemporaneous with the execution of the note, and parcel of the same contract, and, therefore, comes within the rule that parol evidence is not admissible to add to, vary or explain a written contract. Bentley v. Bradley, 8 Vt. R. 243 and Isaacs v. Elkins, 11 Vt. R. 679, go further than is necessary in this case, as there the property was subsequently returned, in pursuance of the parol agreement, which was urged as a payment of the note. Reed v. Wood, 9 Vt. R. 285.

2. The only way for the plaintiff to avail himself of this' rule of law, in the present case, is by demurrer, as a traverse of the plea would be a waiver of the law. Baa'ney v. Bliss et al., 2 Aik. R. 60. Noyes' v. Evans, 6 Vt. R. 628. If the agreement set forth in the plea is not a part of the original contract and made at the same time, it is void for want of consideration, as no consideration is alleged in the plea.

3. The plea was bad for not alleging that the promise set up was in consideration of the making of the note, it being only alleged that said promise was made at the same time. It is bad for other causes set down in the special demurrer, and if good in.substance, amounts to the general issue. It, in effect, denies the contract declared on, by setting up a different one. '

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