#### Parker C. Pusey v. Philo W. Peck.

1. Pleading—vwying written contract. A demurrer is properly sustained to a plea which attempts to vary a written contract by showing a different verbal agreement made at the same time.

2. Set-oef—plea of. A plea of set-off which fails to show how the alleged indebtedness sought to be set off, accrued, is bad on demurrer.

Appeal from the Circuit Court of McLean county; the Hon. Thomas F. Tipton, Judge, presiding.

This was an action of assumpsit, upon a promissory note by Philo W. Peek against Parker C. Pusey.

The defendant pleaded twojspecial pleas. They alleged, in substance, that the note was given at the urgent request of one Thomas, the payee, on a partial settlement between defendant and Thomas, under the verbal promise of the latter that he would keep the same in his possession till a full settlement could be had, and that any credits that might then be found due from Thomas to defendant should be endorsed on the note, and alleged that Thomas then and still was indebted to defendant in a larger sum than was due upon the note, and offered to set off the same; also, that the plaintiff’s son took an assignment of the note with notice of the said agreement and matters of defense, and that the same was indorsed after maturity by the son to plaintiff.

The court sustained a demurrer to these special pleas. A trial was had upon the general issue, resulting in a verdict and judgment of $777.43 in favor of the plaintiff.

Messrs. Hatch & Slade, for the appellant.

Messrs. Capen <fc Ewing, for the appellee.

*99Per Curiam :

The demurrer was properly sustained to the defendant’s special pleas. They attempted to vary the effect of a written contract by showing a different verbal agreement- made at the same time. As pleas of set-off, they are bad in not showing how the alleged indebtedness accrued.

Judgment affirmed.