
    KERN against VOORHIES.
    OH CERTIORARI..
    The principal objection to the proceeding below was, that the justice overruled legal testimony.
   PíJNíriíTGTOjsr, J.

The only objection supported by the record, that has any weight in it, is the 6th.' The [*] action is brought on a due bill given by Kern to Voorhies, for ninety-six gallons of cider spirits and barrels to contain it, to be delivered on demand. The defendant offered parol evidence to prove that at the time the due bill was given, the plaintiff, Voorhies, promised to deliver a riding chair and harness for the cider spirits, &c.; and although the plaintiff had offered to the defendant a riding chair and harness, yet it was not as good as it was agreed to be. The justice overruled this testimony; and this is the 6th error assigned; and I think the justice did right; that a written contract cannot be destroyed in this way. How far an action can be supported for this breach of contract, in not delivering the chair and harness; or how far it may be set up as a set-off, is another question. As it is, I think the judgment ought to be affirmed.

Kiekpatjkick, C. J.

I think the justice did rightly in overruling this testimony. It would be in the face of the written contract, which says value received.

Rosseel, J.

For affirmance.

Judgment affirmed.  