
    Barndollar against Tate.
    In Error.
    UPON a writ of error to the Common Pleas of Franklin county, the case was as follows :
    
      Michael Barndollar, the plaintiff below, purchased of one John Musser a tract of land, containing 400 acres, on Bloody Run, and gave his seven bonds in payment, the last of which, for 107/. 2s. 10d. and interest, was payable on the 1st March, 1794. Musser, at the same time gave his bond, dated the 7th March, 1787, conditioned to make him a complete title before the payment of the last of the said seven bonds.
    On the 13th October¿ 1800, an agreement was executed between Michael Barndollar and Samuel Tate, the defendant, by which Barndollar, for the consideration of 1100/. sold to Tate 80 acres of land, part of the 400 acres purchased from Musser. By this agreement, Barndollar covenanted with Tate to make, or cause to be made, a conveyance by patent for the said tract of land,.as soon as the same could be done on the reasonable request of Tate, and also empowered him to procure from Musser a patent agreeably to 3£usser's bond of the 7th March, 1787, for which Barndollar-was to pav Tate 31. and was also to allow him for the balance due to Musser on his procuring the patent, out of the first payment after the patent should be procured. At the time of making this agreement, the plaintiff delivered Musser's bond to the defendant, “ in order,” as it was expressed in the receipt which was taken for it, “ to settle the contracts therein mentioned “ with the said Musser, in behalf of the said Barndollar."
    
    It appeared, that on the 2d September, 1800, Musser had ordered Barndollar- to pay to Tate the whole of his last bond for 107/. 2s. 10d. except 90/. which was the estimated cost of patenting the 400 acres.
    
      Barndollar brought his action of covenant against Tate, on the agreement of the 13th October, 1800, and declared that Tate had covenanted to procure a patent for the tract of 400 acres, and assigned a breach in his not having procured the same. ...
    Although a mistake in drawing articles of agreement may be proved by parol evidence, yet, in an action of covenant, upon written articles, the plaintiff is not at liberty to prove by parol evidence, an agreement different irom that on which he declares.
    AsellsB 400 acres of land, and binds himself to procure a patent for the same, on the paymeut of the last instalment. B sells to C a part of the said land, and covenants to procure the patent on the reasonable requestofC,and by the same instrument empowers 0 to procure the patent from A, for which he is to be allowed a valuable consideration. B cannot support an action of covenant against G for not procuring the patent.
    
      On the trial of the cause, the plaintiff offered to prove by parol evidence, that at the time when the agreement was executed, the defendant undertook to procure the patent for the whole 400 acres himself, in consideration whereof, the plaintiff was to allow him the 90/. which had been excepted by Musser out of the bond for 107/. 2s. 10d. This evidence was objected to by the defendant’s counsel, and over-ruled by the Court-, who then charged the jury as follows :
    Walker, President. The declaration states, that Tate covenanted to obtain a patent, and did not, to the damage of Barndollar. The question is, is there any-such covenant entered into by Tate? If we have been wrong in over-ruling ■the parol testimony, which was offered by the plaintiff, our error will be corrected in the Supreme Court, and the matter will come before another jury. You must decide on the evidence before you.
    When an agreement is put into writing, it remains permanent evidence of the' contract, and can neither be added to nor subtracted from by parol testimony. Hence the law is, that you cannot vary from the writing. What is written ? Barndollar agrees and covenants to obtain the patent. This is a positive agreement, plain in its terms, and doés not include the idea of Tate’s being bound to do the same thing. But the instrument proceeds, and empowers Tate, as attorney, to obtain the patent from Barndollar. Does a man who receives a power of attorney bind himself in a covenant to do the act he is empowered to do ? He is bound as an agent to act faithfully, but is not liable in an action of covenant; he may give up the power, but if he mismanages or is negligent, he is answerable in case. It is said, that this is more than a bare power of attorney; that it refers to the title-bond, which thus becomes a part of the agreement. It does so, for some purposes ; but not so as to bind Tate for the performance of MusseBs covenant. It is only a direction to Tate what title he is to accept from Musser. On the bond, there is endorsed .a power of attorney authorising Tate to act in this particular. This fortifies the idea of his being a mére attorney ; and the receipt on the copy of the bond expressly states it to be for the purpose of settling with Musser, for the use, and on behalf of Barndollar. The sum of 90/. is endorsed on BarndollaBs seventh bond, for the first payment, which, it is alleged, was to procure the patent. This shews that he was not to do it for 31. and renders the matter clear. It might be supposed that all the purchase money was paid. .If Tate has acte<^ amiss, he is liable in another action, not in this. We are all of opinion, that the plaintiff cannot recover.
    A bill of exceptions was sealed by the Court, and the plaintiff took his writ of error.
    
      S. Riddle and Brozvn, for the plaintiff in error,
    argued, 1. That the evidence offered to explain the article of agreement, should have been admitted, and cited Thompson v. White
      
      , Pitcairn v. Ogbourne, Baker v. Pairee, Legal v. Miller
      
      , Simpson v. Vaughan, Brown v. Selwin
      
      .
    
    2. The agreement between the parties, that the plaintiff should pay the defendant 3l. and allow him for the balance due to Musser on his procuring the patent, being under seal, amounted to a covenant on the part of the defendant, that he would procure it. To this point they cited Hallis v. Carr, Pordage v. Cale, Cale’s Case
      
      , Bush v. Cales, Stevens’ Case, Wilson’s Bacon, tit. Covenant A, Uvedale v. Halfpenny
      
      .
    
    
      Huston and Dunlap, contra.
    1. The parol evidence was offered to prove an agreement entirely different from that contained in the written articles, on which the plaintiff’s action was founded, and was therefore properly rejected. 2. The plaintiff clearly covenanted to procure a patent for the land, on the reasonable request of the defendant. Can the agreement then be so construed as to bind the defendant to do the same thing ? The difficulty arose as to the manner of obtaining the patent from Musser; and for this purpose the defendant merely became the attorney of the plaintiff.
    
      
       1 Dall. 426.
    
    
      
      
         2 Ves. 375.
      
    
    
      
       1 Ves. 455.
    
    
      
       2 Ves. 299.
    
    
      
       2 Atk. 31.
    
    
      
      
        Ca. Temp, Talbot, 240.
    
    
      
      
         2 Mod. 91.
    
    
      
      
         1 Lev. 274.
    
    
      
      
         1 Salk. 196.
    
    
      
       6 Vin. tit. Covenant, 387.
    
    
      
       1 Leon. 324.
    
    
      
      
         2 P. Wms. 151.
    
   Tilghman C. J.

This is an action of covenant on articles of agreement between plaintiff and defendant, in which the plaintiff declares, that the defendant covenanted to procure a patent for 400 acres of land described in the articles, and assigns a breach in the'not procuring of the said patent. It' appears by the articles, that the plaintiff agreed to sell to the defendant 80 acres, part of 400 acres of land, which the plaintiff had purchased of John Milsser. The land was not patented, but the plaintiff had Musser's bond, conditioned for the obtaining of a patent on the payment of the whole purchase money. Part of the purchase money was due to Musser at the time of executing the articles between the plaintiff and defendant. The plaintiff covenanted with the defendant, “ to make, or cause the same to be done, a conveyance by “ patent for the said tract of land, at any time after the same “ can be done, at the reasonable request of the said Samuel Tate; and further, the said Michael Barndollar doth em- “ power the said Samuel Tate, to procure from John Mus-u ser a patent for the within mentioned land, agreeable to a “ title-bond entered into between John Musser and Michael “ Barndollar, dated 7th March, 1787, for which the said “ Michael Barndollar is to pay to the said Samuel Tate 31., “ and likewise to allow the said Samuel Tate for the balance “ due to John Musser, on his procuring the patent, to be “ taken out of the first payment after the patent is procured.” This covenant is not well drawn, but the meaning is plainly as follows: The plaintiff took upon himself to make Musser procure the patent; but the defendant was to go to Musser, and bring the patent from him to the plaintiff, for which service he was to receive 3l. If any part of the purchase money should remain due from the plaintiff to Musser, after the ob- ' taining- of the patent, the amount thereof was to be paid by the defendant to Musser, and the defendant was to deduct the same out of the first payment which should be due from him to the plaintiff thereafter, according to the articles of -agreement. On the trial of the cause the plaintiff offered to prove by parol evidence, that at the time of the execution of the articles, it was agreed between the plaintiff and defendant, that the defendant should lake upon himself to procure a patent for the whole 400 acres of land, and that he received from the plaintiff a valuable consideration for such assumption. The Court of Commom Pleas refused to receive this evidence; and, although evidence of an import somewhat •similar was afterwards given, (I suppose by consent,) the court directed the jury, that the evidence did not support the action. In both decisions I think the court was right. For granting that a mistake in drawing articles of agreement may be shewn by parol evidence, the question was, whether súch evidence was relevant, on the issue joined? It is clear, that the agreement offered to be proved,, was different from the one set forth in the articles of agreement. But, the plaintiff’s action was founded on the articles of agreement, and must stand or fall with them. If, in fact, the parties made a different agreement by parol, that agreement might be the ground of a different action, but could not support an action foundéd on the articles. ,

I ám therefore of opinion,, that the judgment should be affirmed. ''

Ye ates jf.

The .plaintiff declared on articles of agreement, dated 13th October, 18.Q0, setting them out, and,lays the. breach in the defendant’s not procuring a patent. It appears, that John Musser .originally sold 400 acres of land, on Bloody Run, to .Barndollar, .and gave his bond, on the 7th of March, 1787, conditioned .to make him a complete title before the payment , of .the obligation to Musser, for 107/. 2s. 10</. and interest, which would fall due on the 1st March, 1794. The. purchase money and patenting fees wer.e thus agreed to be paid .out of the consideration, stipulated to be paid on the sale. . When Barndollar afterwards agreed to sell SO acres, part of the .large tract, to Tate, he covenanted “ to “ make,-procure, or cause the same to be done, a conveyance “ by patent with, special warranty at any time-after the same “can be’procured.” On this, point no difficulty whatever can arise. The defendant , offered to prove by Philip Fishbourne, who drew the articles, that at the. time they were signed, Tate and Barndollar agreed on Tate's taking it on himself to procure the patent, and that the 90/. mentioned in the articles was allowed to Tate, in order that he might take/ out the patent himself. As to Mr.. Fishbourtie, it w-as too gross to suppose for a moment, that Tate promised to obtain a patent for the lands sold, whether he received any consideration or not. There can be no doubt that the parol testimony offered, went immediately to establish a new contract, different from that declared upon in the most material point-. Could this testimony be legally received, is the only question. I admit, that what has passed between the contracting parties at,andimmediatelybefore the execution of the written contract may be given in evidence to shew their true meaning, according to our ideas of the Law of Pennsylvania. ' But in no case that I know of, has the law been carried so far, that where the expressions in the contract are free from all doubt and ambiguity, and the party seeks his remedy under it, a new contract can be set up materially different from the written contract, whereupon he may charge his adversary. It would be contrary to all rule, and the first elements of justice ; and no man sued could be safe under any other system of judicial decision. lías a new contract been made ? Let the party ground his suit upon it, and recover according to the true state of facts as proved to the jury on the trial. But it has been urged here, that Tate agreed to take out the patent, was to get 3/.for so doing, and was to be allowed 90/. for procuring it. The 3/.' is' for mere travelling charges, and it is idle, to speak of that as an equivalent, when the further sum of 90/. was thought to be necessary for that purpose. No man can seriously think, that it was the meaning of the contracting parties, that the patent which Barndollar by express terms covenanted to procure, was to be procured for the pitiful sum of 31., but only, that if so procured, Tate should be allowed 90/. out of his purchase money for obtaining it. There is therefore, no covenant on the part of Tate, that he should procure the patent; and the honesty and equity of the whole case rests on this, Has Tate, after payment of his" 1100/., his full consideration money, received funds for payment of the several demands due on the patenting of the lands-? This does not appear; and on the whole matter, I am of opinion, that the judgment of the Court of Common Pleas should be affirmed. ■

Brackenridge J. expressed his concurrence in affirming' the judgment, but for different reasons. His opinion, however,- was not reduced to writing.

Judgment affirmed.  