
    George A. Brenzel v. Ferdinand Kirschner.
    1. Errors—when will not he considered. Errors assigned will not be considered on review where the abstract does not show the objection made and the action of the court thereon.
    2. Contract—when not subject to construction. Where there is no ambiguity in the language used, the' instrument must speak for itself, and the parties to such contract are held to mean what they have clearly stated in writing.
    
      Action commenced before justice of the peace. Appeal from the Circuit Court of Wabash county; the Hon. Pbikce A. Peaece, Judge, presiding. Heard in this court at the February term, 1906.
    Reversed and remanded.
    Opinion filed September 14, 1906.
    E. B. Greer and Theodore G. Bisley, for appellant.
    M. H. Murdy, for appellee.
   Mr. Presidirg Justice Myers

delivered the opinion of the court.

This action was brought against appellant, before a justice of the peace, to recover a balance of $61.90, claimed to be due on an itemized account which was filed in the Circuit Court. The case was tried in the Justice Court, appealed to the Circuit Court and there, again tried by a jury, resulting in a verdict and judgment for the plaintiff for the sum claimed, $61.90. The defendant appealed and the record is now before us for review. In the trial below the total claim of the plaintiff amounted to $154.90, and the counter-claim or set-off filed by the defendant, duly itemized, aggregated $169.99. As against his claim the plaintiff conceded a credit to defendant of $93.45, the sum due on a chattel mortgage obligation, leaving the exact balance $61.90, for which the suit was brought and the verdict rendered. From this it follows that the item of $74.55 for hauling manure, which appears in the plaintiff’s claim, was allowed by the jury. The allowance of this item raises the controlling question for determination by this court. It appears from the evidence that, for two years appellee was a farm tenant of appellant, under a written lease containing this clause: “The party of the second part (appellee) agrees to draw out and spread on said land all the manure made on the premises and to haul all manure and ashes that the party of the first part (appellant) may procure for him to put on said land.” Appellee testified that he at first objected to signing the lease with the foregoing clause, but upon appellant’s promise that he would pay twenty-five cents a load for hauling the manure he then signed it. He testified further, that when they commenced the hauling of manure, appellant told appellee’s boy that he would pay him for hauling the manure: It does not appear from the abstract that objection was made to any of the testimony offered, or that the trial court was asked by motion or instruction to exclude evidence heard, and, therefore, the first and second of the errors assigned are not before us for consideration. The question whether or not the verdict is contrary to the evidence is made by the fifth assignment, wherein it is assigned that the court erred in overruling the defendant’s motion for a new trial, in which motion the grounds are stated, that the verdict is contrary to the evidence and the law. Under the written agreement, the lease, appellee was not entitled to recover on his claim for hauling manure, nor was the evidence of appellant’s promise at the time of making the lease to pay twenty-five cents a load admissible, being clearly within the established rule that parol evidence may not be heard to vary, modify or contradict a written contract. Where there is no ambiguity in the language used, the instrument must speak for itself, and the parties to such contract are held to mean what they have clearly stated in writing. By the clear and expressed terms of the lease in controversy, appellee agreed, as a part of the consideration for the use of the farm, to haul the manure for which he now makes claim. The trial court so held in sustaining objection to the testimony (as we learn from the record, but not from the abstract), and by appellant’s given instruction numbered 4. There is no evidence to sustain appellee’s contention of a contract made subsequent to the execution of the lease by which to sustain the claim for hauling. Giving to appellee’s testimony the most liberal construction, it falls far short of proving a contract modifying or changing the then existing written contract. There is nothing in the mere statement attributed to appellant, that he would pay the hoy for hauling the manure,- to warrant the conclusion and finding’ that a new contract was entered into between appellee and appellant, whereby appellee was released from his written obligation to do the same work, and that appellant was to pay for what he had already rendered, compensation in granting the lease. There is nothing in the statement, or accompanying circumstances, to suggest a consideration or mutuality of obligation, both of which are essential elements in every contract. There can be no implied obligation to remunerate for services, rendered under and required by a written obligation. Litigation of the kind disclosed by this record is to be regretted, and all the more, where the sum involved is so small, that the controversy should end with the judgment of the trial court. Nevertheless, the right to an appeal is given by law, and under the law may not be denied. It is the duty of this court, as of all others, to determine controversies and hold litigants to the legal principles and practices by which justice is attained and award judgment accordingly. For the reasons stated, that the verdict in allowing appellee’s claim for hauling manure is contrary to the evidence, the judgment will be reversed and the cause remanded. As to other items in the claim of appellee and the counter-clam by appellant we express no opinion.

Reversed and, remanded.  