
    Nashville.
    January Term, 1812.
    WILLIAM BETTS v. TIMOTHY DEMUMBRUNE.
    j-Writ of Error.
    The Court of Errors may intend everything which the record will permit in support of a jndgment, but can imply nothing in order to reverse; the plaintiff in error must place his cause in such a situation as to show that the decision is erroneous. [Acc. McGavoch v. ward, Cooke, 403.]
    Thus, the record must show that he objected to incompetent evidence, or moved that the jury should be instructed as to its proper character and application. [Kelton ®. Bevins, Cooke, 102; 10 T. 343; 6 Y. 373; 2 Tenn. 263.]
    Where a judgment is rendered in the Circuit Court for more than was recovered in the County Court, twelve and a half per cent per annum should be given on so much as was recovered in the County Court.
    Parol evidence is not admissible to add to a written agreement, but a distinct contract may 'be proved by parol, the consideration of which was the promise contained in the written agreement. [Acc. Nichols v. Thompson, 1 Y. 155, citing this case; 1 Tenn. 174 and 265; 6 Hum. 104.]
    DemumbRüne brought an action in the County Court, declaring in assumpsit against Betts, in substance, that in consideration of a certain lease executed by the plaintiff and defendant, by which Demumbrune was to have the use and benefit of a certain house and lot for the term of ten years, and for which Betts was to receive l,000i., Betts promised to build for the said Demumbrune, a kitchen on the premises, of a certain description. Betts pleaded non-assumpsit, and upon a trial in the County Court, after a deduction of $ 314, which Betts claimed as a credit, judgment was rendered for Demumbrune for $ 145.
    From this judgment Betts appealed to the Circuit Court, where, upon a trial being had, a verdict and judgment was found for Demumbrune for the sum of $ 186, with twelve and a half per cent interest on the sum of $145, the amount of the judgment in the County Court. To reverse which last-mentioned judgment the present writ of error was prosecuted.
    Upon the trial of the cause in the Circuit Court, a bill of exceptions was filed by Betts, setting forth the following case: “ Upon the trial of this cause it was proven that it would not have cost more than $ 100 to build such a kitchen as the defendant had agreed to build. The defendant proved an account against the plaintiff for $ 314 for articles furnished the plaintiff near nine years ago. One witness for the plaintiff proved that the want of a kitchen to a public-house or tavern would be a loss of $100 a year; that the house mentioned in the declaration was rented for ten years; that the kitchen was to have been built within a reasonable time after the commencement of the term; that there was a kitchen on the premises at the commencement of the term, but that it was almost useless, and could only be used in dry weather, and remained in that situation until about a year and a half before the expiration of the term, at which time a new one was built by the defendant. Another witness proved that, taking into consideration the old kitchen, the loss sustained by the want of a good one would be sixty dollars a year. It also appeared that the house' had been used before it was rented, as a tavern, and that it was so afterwards used by the plaintiff. It was also proved that after the execution of the lease by Betts to Demumbrune, Betts went to examine the articles of lease, and upon examination finding nothing mentioned in it about a kitchen, Betts said that he had agreed to build a kitchen as large as the old one, and as the plaintiff was an honest man, he would build it; for that it was his contract. It was proved that this agreement was made, at the time, or shortly after the lease was executed. Several witnesses swore that they had heard the-defendant say he had agreed to build a kitchen on the lot rented to the plaintiff, and for the plaintiff. It was also proved that the plaintiff gave the defendant for the rent of the premises aforesaid a tract of land worth 1,000 pounds, and that the witness understood, from the plaintiff and defendant, that the building of the kitchen was also on account of the land so sold by the plaintiff to the .defendant as aforesaid, in consideration of the rent and contract. Upon this evidence the jury found for the plaintiff $ 186.33 J cents, whereupon the defendant moved for a rule to show cause why the judgment and verdict should not be set aside and a new trial be granted; but the Court overruled the motion, and permitted the verdict and judgment to stand. To which opinion of the Court, the defendant, by his attorney, excepted, &c.
    And now the cause came on to be argued upon the following assignments of error: —
    1. The Court below erred in giving a judgment for 12^- per cent on the amount of the judgment in the County Court.
    2. There is no good consideration laid in the declaration, and
    3. The Court erred in overruling the motion for a new trial.
    
      Goolce, for the plaintiff in error.
    The last assignment of error is important, and deserves consideration. Perhaps no principle of law is better settled than that parol evidence shall not be received to contradict or extend a written agreement. It appears that Demumbrune had leased of Betts a house and lot for the term of ten years, for which he was to receive a specified consideration ; and this contract so made was reduced to writing and signed by the parties. The question then occurs, can Demumbrune rely to recover in this action upon a contract made at the same time, and indeed forming a part of it, which is not incorporated in the written agreement ? That he cannot, at this day, I hope will not be questioned. 3 Wills. 275 ; 3 Dal. 424. The law presumes that wherever there is a writing between the contracting parties, it contains fully the bargain intended to be made, and to proceed upon any other principle, would be opening a wide door for fraud and perjury. In all ages greater solemnity, and with much propriety too, has been attached to written than to parol testimony; because the one is fixed, certain, and cannot mislead, whereas the other depends wholly upon the honesty of the witnesses and the correctness of their recollection. Upon this principle it has been settled by a variety of cases that where there is a writing, the law holds that it contains all the contract made between the parties, and will not permit parol proof to extend or alter it in any respect whatever. If De-mumbrune really bargained for building of this kitchen, it was easy to' have it incorporated in the written contract; and its not being found there, no matter whether it be owing to. omission or mistake, he cannot have the benefit of it. 2 Wit. Bla. Rep. 1259 ; 3 D. & E. 474; Doug. 24; 1 Atk. 13; IP. Wmst 618; 2 Atk. 384; Bul. N. P. 269-280; Pow. Con. 435, 436; 1 Dal. 10; 2 Dal. 133 ; 4 Dal. 340 ; 1 Johns. 139 ; Hardin, 258. There is also a ease in Kirby’s Reports, where there had been a writing executed by the plaintiff to the defendant, releasing him from all demands up to that date. .The plaintiff brought suit, and the defendant pleaded this in bar, to which the plaintiff replied, that the particular demand then sued on was not included in the release. The defendant demurred and had judgment, because this would be to contradict a written agreement. Kir. 291. The same principle is also laid down in 1 Mass. Rep. 69 - 91; 3 Johns. 68; 1 Johns. 414; 3 Call, 194; Kir. 23, 293.
    In short, men’s written agreements are not to be contradicted or extended by parol proof. There is a case also in Day’s Reports fully illustrative of this principle. A sold B a tract of land, containing, as mentioned in the deed, sixty acres, for a certain sum, to secure the payment of which a promissory note was given. It turned out that the land sold only amounted to forty acres, and B commenced a suit against A, relying upon a contract made at the same .time, specifying that in case the land fell short of the quantity, A would refund back a proportionable sum. But the Court said that the action could not be supported; because, by the admission of such parol proof, the contract would be extended beyond the written agreement. 1 Day’s Rep. 23. See also 2 Day’s Rep. 137; 1 Mum. & Hen. 124 and 2 Co. Mss. 50.
    But there is another ground upon which I contend that the Circuit Court ought to have granted a new trial. The verdict of the jury is evidently for too much. I admit that there are a variety of cases where the damages are wholly in the discretion of a jury; but this is not one of them. In this case, the law has surely fixed some data to go by, and of this the Court is the proper judge. Shall the damages recovered cover the whole amount of the possible loss sustained by Demumbrune? If so, then the jury have a right to say what that loss is. Shall the sum which it would cost to build the kitchen be the proper criterion? Then the jury may say what that sum is; but it is not the province of the jury to fix the rule which is to govern the plaintiff’s claim. In this case the jury have evidently given damages commensurate with what the rent of such a kitchen would have amounted to for seven or eight years, whereas they ought to have been confined to the sum it would have cost to build it, which is about one hundred dollars. The verdict of the jury is therefore several hundred dollars more than the plaintiff has a right to recover.
    Whiteside, for the defendant.
    It does not appear from the record that Betts made any objection to the right of Demumbrune to recover until after the jury had found their verdict. If the testimony offered was inadmissible he ought to have arrested it while the cause was on trial, and it is too late afterwards, by way of motion for a new trial. Let this be as it may, Demumbrune has a good cause of action. I do not contest the principle laid down in the cases cited by Mr. Cooke; but they do not apply in this case. They all go upon the notion that for the parol promise, offered to be proved, there was no consideration ; and perhaps no case can be found where there has been actually a consideration paid for the promise in writing, as well as the promise by parol, but what promise by parol has been supported. However, I have no occasion at this time to resort to such a principle, because I think it is sufficiently evident that the contract relied upon in this suit by Demumbrune is not one and the same contract as that reduced to writing. The case in 1 Day, 23, and 3 Wills. 275, which are chiefly relied upon by Mr. Cooke, were entire contracts, — contracts made at the same time, and forming one entire transaction. If this case were so situated, I should not contend that the action could be supported; but this is not the fact. The bill of exceptions states that the contract to build the kitchen was made at the time the lease was executed, or shortly after. From this it is by no means certain that they formed one entire contract; and if they did not, then they do not come within the principle laid down by the gentleman on the other side. In fact, there seems to have been two contracts, — the one for renting the house, and the other for building the kitchen. They were separate, and do not even appear to have been made at the same time. The latter, although not reduced to writing, can be well supported; and the consideration of the written contract can maintain the action on the other. The cases cited go no further than to say that parol evidence shall not be received to contradict a written agreement; but the principle can, as has been before remarked, apply only when it is an entire contract, and not where they have been made at different times, although in relation to the same matter.
    The damages recovered are not too high. Betts was paid to build the kitchen, and it was his duty to have performed his contract. If he did not, he must be responsible for all the loss sustained on the part of Demum-brune in consequence of his non-compliance. The kitchen was to have been built by Betts at all events; Demumbrune had no right to do anything about it, because such was their contract. Betts, therefore, ought to pay all the damages Demumbrune sustained, and not be confined to the price of building the kitchen only.
    Upon the first point I shall only add that if from the bill of exceptions any doubts arise in point of fact whether the contract to build the kitchen was made at the same time, and formed a part of the agreement intended to be reduced to writing, the jury were the proper judges of that matter, and they having found in favor of Demumbrune, the fact is therefore settled.
    
      Goolce, in reply.
    I shall not go over the ground I occupied in my former arguments, because Mr. Whiteside does not seem to deny the principles I laid down; he only objects to their application. That this is an entire contract, it seems to me there can be no doubt; for although there is one expression in the bill of exceptions which, standing alone, is calculated to produce a doubt, yet it sufficiently appears elsewhere that there was but one contract. Indeed, it is expressly alleged that the promise to build the kitchen was a part of the contract to rent the house. But if I am mistaken in this, yet it will not be placed in any better situation for Mr. 'Whiteside. Separate the agreements, and the one which is the foundation of the present action will be without consideration; and no legal idea is better settled than that a voluntary promise, without a good consideration, is not binding. Going upon this state of the case, and it will simply appear that Betts promised to build a kitchen for Demumbrune, for which, from aught that appears here, he was to receive nothing. Pow. Con. 333 - 331. The 1,000?. could not be the consideration, because for that sum Demumbrune had already been compensated by the rent of the house and lot.
    The Court below erred in rendering a judgment for the twelve and a half per cent on the amount recovered in the County Court. The act of Assembly only meant to authorize such a judgment where the same sum was recovered in both courts. To have the benefit of the twelve and a half per cent Demumbrune should have released all but the $ 145.
   White, J.

now delivered the opinion of the Court.

In this case three errors have been assigned by the plaintiff: —

1. That there is no valid consideration for the promise.

2. That the Court below erred in giving judgment for the twelve and a half per cent interest on the judgment of the County Court.

3. The Court below erred in overruling the motion for a new trial.

On the second of these errors but little has been said in the argument, and that question is considered by this Court as at rest. While the superior courts existed, if the defendant appealed to one of them from the County Court, and the plaintiff, in the Superior Court, recovered the same, or a larger sum than that recovered in the County Court, the plaintiff in either of those cases was entitled to twelve and a half per cent on the sum recovered in the County Court: because in either instance the judgment of the County Court was affirmed within the meaning of the statute ; the object of which was to prevent appeals where injustice had not been done in the County Court. But if the plaintiff recovered in both courts, yet a less sum in the Superior than in the County Court, there the twelve and a half per cent was not to be awarded. The circuit courts, under the present, being, as it respects appeals from the county courts, the substitutes of the superior courts under the former system, the same determination upon this point ought to be made in the circuit, that formerly was in the superior courts. Of course, upon this part of the case we believe no error has been committed.

The third error has been insisted upon with some earnestness, but apparently with not so much as the first. It will therefore be next noticed.

It has been alleged that the jury adopted as the criterion from which' they estimated their damages the injury the defendant sustained in his business as a tavern-keeper, when they ought only to have allowed as much as it would have been worth to have built such a kitchen as the contract contemplated. Upon inspecting the bill of exceptions, it is found the defendant, in opposition to the plaintiffs demand in the Circuit Court, gave in evidence a set-off of $ 314. It is believed evidence of this set-off, if objected to, could not, from the nature of the demand, have been allowed. If we suppose the data assumed by the counsel for the plaintiff correct, upon which we do not think it necessary to decide at present, and add interest upon the sum thus recovered, and exclude Betts’s set-off, Demum-brune would still recover pretty nearly the same sum which he has already recovered. And this Court ought not to reverse judgments, unless some material error upon the merits has intervened, and the more especially in this case, where it does not appear that the Court were requested to give, or did in fact give, any directions to the jury upon this point, but left them to ascertain the damages from the circumstances disclosed to them.

In examining the first error assigned, the counsel have alleged in argument that the contract for renting the lot, and erecting the kitchen upon it, was one entire contract; and that as the contract for renting the lot was reduced to writing, and in that writing nothing is said respecting the kitchen, that this part which was left out of the writing is lost sight of, and that the Court ought not to have suffered parol evidence to add to the written agreement: And if we do not view this as an entire contract, that there is no consideration whatever to support the promise.

The authorities produced seem to establish these positions : —

1. That parol evidence ought not, at law, to be received to contradict a written agreement.

■ 2. That it cannot be received to add to one, or even explain it, except there is some latent ambiguity in it.

Still the difficulty remains to apply these principles to the present case. In looking into the record it is not perfectly clear that this was an entire contract. By examining the declaration it is conceived it will be found to be a fair construction of it, that Betts had requested Demumbrune to rent his tavern, and promised him, if he would do so, he would ereet the kitchen; He did rent the tavern, and the contract for this renting may well be a consideration for the promise to erect the kitchenand yet the contracts be distinct, the one reduced to writing and the other not.

But, independent of this, it seems to us that the business of this Court is to revise the opinions delivered by the circuit courts; and that if in the course of the trial it seemed to "be parcel of the same agreement, one part of which only was reduced to writing, the defendant’s counsel ought either to have objected to the evidence being received by the jury, or after given to have moved the Court to instruct the jury, that if they believed them to be only parts of the same entire contract, to find for the defendant: And if the Court had either overruled the objection, or given different directions, then to have excepted to the opinion, and thus brought the question directly before this Court for examination. As the defendant in the Court below did' not adopt this course, but suffered the evidence to be received, and submitted to the jury without objection, and without any particular direction as to the law, it would be improper for us to interfere and reverse the judgment. After the verdict, it is true, a new trial was moved for and refused; and to this opinion an exception is taken. On what ground the new trial was either moved for or refused does not appear. Suppose the Circuit Court had said, “We are now satisfied that, according to strict law, Demumbrune ought not to have had a verdict; yet, upon the whole, justice is done ; the equity of the case is attained. Demumbrune has a verdict for nothing but what, in some form or other, he ought to recover, and we will not disturb the verdict.” The authorities would, as we conceive, sanction such a doctrine. How can this Court know but that this is the very ground upon which the Circuit Court proceeded ? In no way does the record forbid the supposition. The Court may intend everything which the record will permit, in support of a judgment, but can imply nothing to enable them to reverse. A plaintiff in error must place his cause in such a situation as to show that the decision of the inferior court is erroneous. Judgment affirmed.  