Page:North Dakota Reports (vol. 2).pdf/97

 all. They simply suggest the idea that the debt is created and the money received on account of a ranch, but nothing on the face of the paper implies that the ranch does not belong to the defendant, who signed the note and received the money. The implication, if any, would be that the ranch did belong to the man who promised to pay the note. It follows that when plaintiff rested its case a prima facie case was established both on the admissions in the answer and the proof. It was manifest error, therefore, to nonsuit the plaintiff and direct the jury to return a verdict for defendant. If the defense set out by the answer had been valid, it was error to direct a verdict in favor" of the defendant, as was done, before any evidence was offered in support of the defense pleaded. For this error the judgment of the court below must be reversed. But, in view of the circumstances as disclosed by the record we conceive it to be our duty to make a final disposition of the case without directing a new trial. It would be worse than idle, it would be grossly unjust, to permit a re-trial upon the merits, if the defendant, upon his own showing, has no legal defense to the cause of action stated in the complaint. We are entirely clear that the answer states no defense as against the defendant's personal liability to pay the note. The answer nowhere avers that defendant's principal ever agreed, expressly or by implication, to pay the obligation upon which plaintiff loaned its funds. How, then, can the court declare that the defendant's principal shall pay an obligation which he never promised to discharge? But if there had been an express agreement entered into by parol at the time the note was made and delivered, whereby it was agreed between all the parties that the defendant should not be bound, and that the principal, Sir John Pender, should be bound, such an agreement, if pleaded, would constitute no ground of defense to the action. The bank advanced its funds to the defendant, and took his personal and written obligation therefor. The transaction was evidenced by a writing, and to permit such supposed agreement to be proven by parol would be to vary, contradict and annul the written agreement by a parol contemporary arrangement. This the law will not tolerate. Comp. Laws, § 3545; Thompson v. McKee, 5 Dak. 176, 37 N. W. Rep.