
    Hancock and Powell vs. Edwards.
    A parol promise made at the time a bill single was executed, not to enforce the collection of i t till a given time after it falls due, cannot be enforced in Chan-
    Edwards sold to Hancock a slave for $500. One hundred and forty-four dollars were paid, and a bill single executed for the balance, payable one day after date, with Powell as surety. A judgment was obtained on this bill single a short time after its execution. And the makers of it, Hancock and Powell, filed a bill in the Chancery Court at Lebanon, alledging that the obligee promised at the time they executed the obligation, that he would not attempt to enforce the collection of it for three years from the time it fell due.. The bill prayed that the defendant be enjoined from enforcing their judgment at law, till the lapse of three years from the date, of the obligation.
    The defendant denied the allegations of the bill, and proof was taken in the cause, going to show, that some such conversation took place at the time of the execution of the obligation.
    The Chancellor, Ridley, at the hearing on bill, answer, replication and proof, dismissed the bill, and the complainants appealed.
    
      J. S. Brien,. for complainants.
    This is a bill filed by the complainant for the specific execution of a contract: — and the only question in the case is, can parol evidence be admitted to change the written contract.
    A written contract may be changed by parol proof. See 2 Hump. Rep. 584; lb. 119; 1 Yeates Rep. 132; 2 Dallas Rep. 171; Ciarle vs. Grant, 14 Yes. Jur. 519; 15 Yes. Jun. 523; Winchester vs. Winchester, 1 Ves. & Beames, 375; 1 V. & Beames, 165; Sugden on Vends. 95, 96, 102, 105 and 120; Maddox Cha. 405; Birchfield vs. Castelman, Adds. Rep. 181. The last case cited was a suit upon a covenant for breach of warranty of title. Upon the trial it was allowed the plaintiff to prove by parol, that the covenantor agreed to pay all expenses of suits that might be brought for the lands. See also 1 Yeates Reports, 132; 4 Dallas Rep. 132; 1 Yeates, 139; 2 Starkey, 551.
    In Pennsylvania it has been decided, that under the plea of payment to a suit upon a bond against a security, parol evidence is admissible to show, that he executed the bond under a declaration of the obligee, that his signing the bond was mere matter of form, and that he should never be called upon for payment. See Millervs. Henderson, 10 Serg. & Rawl. 290; 14 Serg. & R. 159; 11 Mass. Rep. 436.
    Parol evidence is admissible, to show that a deed was delivered as an escrow. Paulding el als. vs. United States, 4 Cranch, 219; 8 Mass. Rep. 230; 2 Con. Rep. 302; 5 Cow. Rep. 555.
    In equity, as between the original parties, parol evidence is admissible to show, that a deed absolute upon his face was intended as a mere security, and that an attempt to treat it as an absolute deed, is a fraud. James vs. Johnson, 6 John. Ch. R. 417; Strong vs. Stuart, 4 John, Ch. Rep. 167; Todd vs. Rivers, Dess. Ch. Rep. 155.
    Upon a review of the above authorities, it seems to me that if parol evidence can be introduced to vary or explain any written contract, that this is as strong a case as can be presented.
    
      Stolces, for the defendant.
    Written agreements are presumed to contain the whole sense or meaning of the parties; and, on account of this presumption, it is against the policy of the common law to permit parol proof to add to, vary, or diminish the terms of such agreements. This principle of the common law looks to the fact, that the extent and terms of the contracts of parties, when deliberately reduced to writing, and solemnly authenticated by their seals, are found to be more accurately and distinctly stated in the instruments themselves, than in the frail and treacherous recollections of witnesses, however intelligent and honest. To adopt a different rule, in reference to written agreements, would be to destroy the solemnity and usefulness of all instruments under seal, to endanger the rights of parties intended to be secured, and to open wide a door for the admission of fraud, corruption and perjury. It would render the stipulations and meaning of the most solemn instruments doubtful and uncertain, subject to be overturned, enlarged, or diminished at the pleasure of a corrupt adversary. The same rule, as to the admissibility of parol proof to vary, add to, or diminish the terms of a written agreement, prevails generally in courts of equity as well as in courts of law. In equity, however, there are two exceptions to the general rule; where either of which occurs, courts of equity have not hesitated to entertain jurisdiction to vary or control written contracts under seal, although it breaks in to some extent upon the uniformity of the rule, wisely deeming such exceptions a confirmation ofits general soundness.
    1st. If the mistake, which is sought to be established by the bill as a part of the written contract, should be admitted by the defendant in his answer, then a court of equity will correct the instrument by varying, enlarging, or diminishing its terms and stipulations, so as to make it conformable to the true intent and meaning of the parties. Davis vs. Symons, Cox's Rep. 404; Geddy vs. Stainback, 1 Dev. & Bat. Eq. 475.
    2d. If the alledged mistake is denied in the answer of the defendant and it is to be made out by parol proof, then it can be incorporated, as a part of the written contract, if it appears, by clear and irrefragible proof, that the provision was a substantive part of the agreement, and intended at the time to be inserted in the instrument itself, but was not through fraud, mistake, or accident. 1 Dev.' & Bat. Eq. R. 475; Dev. Eq. R. 258; 1 John. Ch. Rep. 425.
    The case, now before the court, does not fall within either of these exceptions. Edwards denies directly and positively the existence of any such agreement, as that sought to be established by the bill; and the complainants virtually admit that the note is written just as they intended it should be written at the time it was executed. It is in the form the parties desired it, given for the true amount, correctly dated and due at the time stipulated. The bill seeks to set up a distinct, collateral agreement, not intended at the execution of the note to be incorporate»! as a part of it. It is well settled that the mistake must appear to have been a substantive part of the contract, and intended at the time to be inserted in the instrument, embodying its terms and stipulations, but was prevented by the fraud of the defendant, or omitted by accident or mistake. 1 Story’s Eq. Jur. 164; 1 Fonbl. Eq. B. 1, ch. 3, sec. 11 and notes; Stevens vs. Cooper, 1 John. Ch. Rep. 429; 2 John. Ch. Rep. 596.
    Courts of equity will not act, when fraud is the ground of relief, unless it be made a matter of distinct allegation in the bill, and be put in issue by the pleadings. Fraud is not directly charged in the bill in this casé, but it is left to be inferred alone from the fact, that the defendant brought suit upon the note without regard to the alledged collateral agreement. Goveneur vs.-Elmendorf, 5 John. Ch. Rep. 79.
    But let it be- conceded that the court can, under the present state of the pleadings, hear the proof with a view to the relief prayed for, the defendant still insists that the proof does not make out such a case, as is required, to authorize the court to grant the relief desired by complainants. The court will require the parol condition or stipulation to be established by full, clear and unequivocal proof, and in the absence of such proof, the written instrument will be presumed to contain the true intent and meaning of the parties. See 1 Hum. Rep. 431.
    
      Nicholson, for complainant,
    1st. It is a rule in equity as well as at law, not to allow parol evidence to contradict, qualify, extend or vary written instruments, but in cases of mistake or fraud, courts of equity are constantly in the habit of admitting parol evidence to qualify, correct, and even to defeat the terms of written instruments. 2 Story Eq. 1531. In the present case Hancock was induced to execute this note, payable one day after date, under the positive promise that it was to be held up and not collected for three years. Why was a witness called to this contract unless it was deemed a material promise? Without such an agreement Hancock would not have executed the note — it is fair to infer, therefore, that Edwards procured Hancock to sign the note by this fraudulent representation and promise. If so the case is clearly within the rule above laid down as to correcting or defeating written contracts by parol proof. 1 Hum. 43S; 2 John. Ch. Rep. 585.
    2d. The rule that contracting parties are presumed to reduce their whole agreement to writing, does not operate here— when the terms of the trade were agreed upon, they were these: Hancock was to execute his note, payable one day after date, with security for $356; this was all that was required on his part, and therefore nothing else would be inserted in the note. But on the part of Edwards it was agreed, as part of the contract, that the note should be held up and not collected for three years. This was an obligation on the part of Edwards, and therefore need not be inserted in the note which was not designed to set out the whole contract, but only so much o£jit__ was obligatory on Hancock. This is clear, fromjÉTe5’ a witness is called on to bear testimony as to ah^agreement '’ made by Edwards. The parol proof, therefore, or contradict, or extend the written contract; it JpÍy*¡®owk' 't'he written contract; the written instrument not shtjw^ purporting to show the whole contract. See Vcmfáer'vs. Fain 6 Hum. 104.
    3d. The application here, is for the specific execution of a contract and the facts present a proper case for the exercise of equity jurisdiction, inasmuch as no adequate remedy is furnished at law for the breach of such a contract. Nothing but a specific performance of the whole contract can do justice to the complainant. He was induced to contract a debt upon the express agreement that he was to have three years’ time to pay the principal. He cannot be compensated in damages for a violation of this agreement by the defendant; nothing short of a specific execution can give him satisfactory relief. 2 Story Eq. 718; 3 Atk. 384; 1 Sim. & Stu. 610.
   Turley, J.

delivered the opinion of the court.

This is an attempt, by a bill in Chancery, to enforce specifically a promise, made at the time a bill single was executed, payable one day after date, that the payment should not be enforced till a posterior period.

There is no pretence, that this promise formed a part of the contract, which was intended to be reduced to writing, and was not by accident or mistake, or the fraud or misconduct of the opposite party. It was only inducement held out to procure the contract, to make the most of it; even that is left doubtful by the proof; but take it in the strongest view, there is no principle upon which it can be incorporated into the written contract by parol proof.

Let the judgment be affirmed.  