
    Noble T. Goodell vs. Samuel C. Smith.
    The defendant agreed in writing to go to California with a mining company, as a substitute for the plaintiif, to work with- the company two years, and to remit one half of his net earnings to the plaintiff, “ at the expiration of the association.” The company disbanded before the two years expired, and the plaintiff received his share of the profits to the time of dissolution. The defendant continued to labor in California on his own account, but refused to pay over any share to the plaintiff afterwards. Held, he was not bound to do so.
    A plaintiff, who declares upon and offers in evidence a written contract as his ground of action, cannot introduce the oral declarations of the defendant as to his supposed liability.
    The action was assumpsit; the writ contained the common counts, and an account annexed, as follows: “ 1849, March 19. To cash received by the defendant of the plaintiff to his use, $300. To same, received about ten days previous to March 19th, $25.” — Also a special count on a written contract made by the parties March 19, 1849, in which the plaintiff agreed “ to furnish $300 to the Ware Mechanics and Mining Association, a company organized for California, for their benefit and use; and $25 additional for the private use of the defendant.” In the same contract the defendant engaged to “ accompany the members of said association to California, as a substitute for the plaintiff, and work with the company two years, and be subject to the regulations of said association; also to remit by the company, or otherwise, as the plaintiff should direct, one half of his share of the profits, if any, at the expiration of the association.”
    The breach alleged was, that the defendant did not continue to labor two vears in California, and remit one half the proceeds of his earnings during all that time; but there was no allegation that the defendant had made any other contract with the plaintiff for one half his earnings, than as above set forth. The action was brought in the court of common pleas.
    At the trial before Bishop, .1., it appeared that the plaintiff paid the $300 to the association, and the $25 to the defendant, as the contract required, and that the defendant went to California with the association, as the substitute for the plaintiff. Upon, or before the arrival of the defendant in California, eight members deserted, and the remaining four, including the defendant, worked together until December 1, 1849, when they also separated and divided their joint funds on hand. The portion then belonging to the plaintiff amounted to $55.56, which was duly paid him, and no controversy exists as to that sum. After the company was disbanded, the defendant remained in California, working on his own account, and in November, 1850, arrived home, bringing $444, as the net proceeds of his personal labor after the dissolution of the company. Soon after his return, the plaintiff demanded of him the money advanced, and the defendant gave him $50, but denied his liability to pay any thing. The plaintiff offered to prove that the defendant had said, while in California, that “ he was to stay two years; that the breaking up of the company would make no difference with him, and that the plaintiff was to have one half of his earnings.” This testimony was objected to, because the plaintiff had declared upon and offered in evidence a written contract which-should alone determine the liabilities of the parties; and the testimony was excluded. The plaintiff also asked a witness “ whether the defendant had admitted his liability to work for the plaintiff two years, notwithstanding the dissolution of the company.” This was objected to, because no claim had been made for his earnings after the dissolution, and it was rejected; to which rulings the plaintiff excepted. The plaintiff claimed, that upon a fair construction of the' written contract and the declarations of the defendant offered in evidence, there was a breach of the contract by the defendant, and a liability to refund the $325 advanced. But the presiu-ing judge ruled otherwise, and the verdict was for the defendant. The plaintiff excepted.
    
      E. Dickinson, for the plaintiff.
    
      C. P. Huntington, for the defendant.
   Shaw, C. J.

It is quite clear, we think, that the $325, advanced by the plaintiff, cannot be recovered of the defendant. Three hundred of it was paid to the company and not to Smith, to enable the plaintiff to become a member, which he did in his own name. The $25 was paid Smith, in part consideration of his executory agreement to go to California. Smith’s agreement with Goodell was special, to go to California, as Goodell’s substitute, to work in that company. He did go to California, and worked as long as the association remained in existence. We are of opinion that no breach of that agreement is either alleged or proved. No agreement to work in California, independent of the association, is averred; if there was any such contract, it should have been alleged and proved.

The agreement between these parties being in writing, the admissions of the defendant, as to its effect were rightly rejected. If they varied the terms, they were not competent; if they did not, they were immaterial.

Exceptions overruled.  