¶1It was not error to permit the defendant to testify that the note in suit was not a witnessed note when delivered. The rule which prohibits the introduction of parol evidence to vary a written instrument has no application when the legal existence or binding force of the instrument is in question. This evidence was not offered to vary the defendant’s writing, but to show that the note as presented was not his writing.
¶2 Judgment affirmed.
¶3A petition for a new trial in the above case, brought to the Supreme Court by the plaintiff therein, was heard with the case on the bill of exceptions. The opinion states the case on the petition.
¶4J. J. Lamson for the petitioner.
¶5S. G. Shurtleff for the petitionee.
¶6The note in suit purports to have been witnessed by Allen Perry. Defendant told plaintiff’s counsel before the trial that Perry’s name was not in his handwriting; and the case was prepared upon the theory that the defense would accord with this statement. On trial, to the plaintiff’s surprise, the defendant testified that Perry’s signature was genuine, but that Perry’s wife was the only one present when the note was executed, and that the subsequent affixing of Perry’s name was without authority. The plaintiff thereupon moved for a continuance to enable him to procure the attendance of Mrs. Perry, which motion was overruled. Neither the plaintiff nor his counsel knew that Mrs. Perry was present at the execution of the note until the defendant so testified. The plaintiff now produces in support of his petition the testimony of Mrs. Perry that her husband was present when the note was executed, and affixed his name as a witness in defendant’s presence. This presents a case which entitles the plaintiff to a new trial.
¶7 New trial granted.