
    John F. Murdock et al., Respondents, v. C. Ganahl et al., Appellants.
    1. Contracts, written — Parol testimony touching, when varying, improper.— Parol testimony having a tendency to vary and impair -written stipulations should be excluded. .
    2. Practice, civil — Judgment — Amendment of in General Term, when proper. —When a verdict is based on conflicting testimony, a portion of which is improperly permitted to go to the jury to influence their determination, the only relief competent for the General Term to administer is to reverse the judgment of the court below and remand the case for a new trial. But where plaintiff, on the face of the papers, is entitled to the judgment awarded by the General Term, and the defense insisted on is a total failure, it would be warranted in proceeding to enter up such judgment as ought to have been rendered at Special Term. (See Sess. Acts 1869, p. 18, § 2.)
    
      Appeal from St. Louis Circuit Court.
    
    
      L. D. Picot and T. T. Gantt, for respondents.
    
      Woerner <§■ Kehr, for appellants.
   Currier, Judge,

delivered the opinion of the court.

This case shows that the plaintiffs, August 31, 1868, by a written lease, demised to the defendants certain premises for the term of two and a half years, the term commencing on the first day of September, 1868. It further appears, from a written memorandum, signed by the parties and indorsed on the lease, that the defendants, in consideration of certain alterations and repairs agreed to be made by tbe lessors, “ agreed to pay, for and during the term granted by tbe lease, tbe additional rent of $15 per month,” thereby making tbe monthly aggregate of rent $115. On tbe 7th of December, tbe same year, tbe parties entered into a still further written stipulation, by which tbe defendants, for a valuable consideration, “ disclaimed all cause of complaint respecting tbe manner and time of making said alterations, and (again) agreed to abide by all tbe agreements on tbe lessees’ part contained in said lease and (first additional) agreement.” This suit was brought January 4,1869, to recover tbe rent for tbe previous month of December, tbe plaintiffs therein claiming $115. Tbe defendants deny their liability for more than $100.

At tbe trial tbe defendants offered parol evidence in relation to facts and circumstances attending tbe original negotiation for tbe lease, and showing that the contemplated improvements were not completed till tbe last of November or first of December; that tbe defendants were injured by tbe delay, and also showing what was said and done respecting tbe rent for tbe months of October and November. This evidence was admitted over tbe plaintiffs’ objections. Tbe trial was by tbe court, and a judgment was rendered for tbe plaintiffs, but for a less sum than appeared to be due upon tbe face of tbe contracts. On appeal to General Term tbe judgment was reversed, and judgment was there entered for tbe plaintiffs for tbe $115 and accrued interest. Tbe defendants bring tbe case here by appeal.

Tbe admission of the parol evidence is sought to be defended upon tbe ground that it aided tbe construction of tbe written stipulations. It was shown by tbe defendants that tbe improvements provided for in tbe first written addition to tbe lease were completed on or before tbe first of December, and tbe stipulation of December 7th shows that tbe defendants, for a valuable consideration, waived “ all cause of complaint” connected with tbe improvements, and re-affirmed their contract to pay $115 per month. Therefore neither tbe previous negotiations, nor tbe delay in making tbe improvements, nor tbe acts of tbe parties in relation to tbe prior rent, could have any proper influence in determining the amount of the rent for December. Nor was there any ambiguity in the stipulation of December 7th to be explained. So far as any question here presented is concerned, that stipulation left nothing to construction. It clearly releases antecedent grounds of objection connected with the improvements, and positively re-affirms the defendant’s liability to pay the $115 per month. So far as the parol testimony had any effect, its tendency was to vary and impair the force of the written stipulations. It should have been excluded, as the General Term correctly determined. But it is objected that the General Term had no power to modify the judgment in the manner stated; that the only relief competent for it to award was to reverse the judgment and remand the cause for a new trial. This would be so if there was anything further to try; as where a verdict is based on conflicting testimony, a portion of which was improperly permitted to go to the jury to influence their determination. But that is not this case. Here the plaintiffs, upon the face of the papers, were entitled to the judgment awarded by the General Term, and the defense insisted upon is a total failure. There is nothing whatever to support it. The whole case was before the General Term, and there was nothing further to try. It was warranted, therefore, in proceeding to enter up such judgment as ought to have been rendered at Special Term. Its authority to do so is ample. The statute (Sess. Acts 1869, p. 18, § 2) provides that “a judgment or decree rendered or made by said court at Special Term may be reversed, vacated, or modified at General Term for errors appearing in the record at Special Term, or presented by exceptions taken thereatand it is further provided that said court may, at General Term, award a new trial, reverse or affirm the judgment rendered, or give such judgment as the court, at Special Term, ought to have given, as to them may seem agreeable to law.” As the case was submitted to the court at Special Term, there can be no doubt that it ought to have disregarded the illegal evidence and rendered a judgment in conformity to the stipulations of the parties as evidenced by the written documents.

Judgment affirmed.

The other judges concur.  