
    *Brent v. Richards.
    January Term, 1846,
    Richmond.
    (Absent Cabell, P.)
    Case at Bar — Parol Contract — Bill of Sale Executed in Part Performance Thereof. — A parol contract is made for the sale of a slave, at a price below the market value; but with a condition that if the vendee wishes to sell the slave, the vendor shall have him at the price he received for him. The vendor then executes a bill of sale under seal for the slave, to the vendee, in which only the price given is stated; but there is no mention of the condition for repurchase. The vendee af terwards sells the slave, at a price even above the market value at the time of the first sale; and the vendor brings an action for a breach of the parol contract. Held :
    i. Same — Same—Same—Effect.—The bill of sale is no obstacle to a recovery upon the parol contract.
    2, Same — Measure of Damages. — The measure of damages is the difference between the price at which the vendee bought the slave, and the price at which he sold him.
    This was an action of assumpsit brought in the Circuit Superior Court of Frederick county, by Henry M. Brent against Henry W. Richards. The defendant pleaded non assumpsit, on which the issue was made up; and then the parties agreed the following case:
    “It is agreed that on the 5th day of January 1835, the plaintiff, by parol, sold to the defendant the negro in the declaration mentioned, for the sum of 475 dollars, on the following terms and conditions, that the defendant should keep the slave for his own use, and should not thereafter sell the slave to any person without first giving the plaintiff the refusal at the said sum of 475 dollars.
    “That the said slave was then worth in open market 700 dollars, and the plaintiff could have sold him to a trader in slaves for said sum of 700 dollars on the day the sale was made. That the price was reduced to 475 dollars, because of the condition mentioned, viz: that the defendant was to keep him for his own use, and *should not sell him without first giving the plaintiff the refusal at the same price; and that plaintiff sold, and the defendant purchased the said slave on these terms.
    1 ‘That on the same day, and after the said sale, the said plaintiff gave to said defendant a written order to his (plaintiff’s) brother, Charles I. Brent, who then had the slave in his possession, to deliver him the said slave, and at the same time executed and delivered to the said defendant a writing under the hand and seal of the said plaintiff, in the words and figures following, to wit:
    “For and in consideration of the sum of four hundred and seventy-five dollars, the receipt whereof is hereby acknowledged, I have this day bargained and sold to Henry W. Richards, my negro boy named Nelson, and warrant him sound and a slave for life. In witness whereof, I have hereunto set my hand and seal this 5th day of January 1835.
    H. M. Brent, [Seal.]
    Teste, J. S. Carson.”
    “The said bill of sale was executed and was delivered before said order or together; and the said Henry W. Richards paid to the said plaintiff the said sum of 475 dollars on the 7th of January 1835.
    “And the said defendant afterwards, on the day of May 1836, sold and delivered the said slave to a trader, for the sum of 1000 dollars; who removed said slave to remote parts. That before the said last named sale, the defendant offered the said plaintiff the refusal of the said slave for 1000 dollars, but refused to take the sum of 475 dollars, which the plaintiff then and there offered to give to said defendant for said slave.
    “The expressions as to the plaintiff having sold, and defendant having purchased, used in reference’ to the parol agreement, are not to be taken as admitting in a legal sense the finality of the transaction, but upon the facts agreed that question is submitted to the Court.
    ‘If the law is for the plaintiff, and the true measure of damages be the difference between the value of the slave at the time of the sale from plaintiff to defendant, and the sum for which plaintiff sold him, then it is agreed that judgment shall be entered for the plaintiff against said defendant for the sum of 22S dollars damages, and costs of suit’; but if the true measure of damages be the difference between what the plaintiff sold him for, and the value of the slave when defendant sold him, it is agreed that judgment shall be entered for the plaintiff against defendant for the sum of S2S dollars damages, and costs of suit.
    “But if' the parol agreement was merged by the specialty; or if the said agreement was rendered void by the execution of said bill of sale; or, if, upon the trial of the case before the jury, the evidence of such parol agreement ought to have been excluded in consequence of said bill of sale, and the law is for the defendant, then it is agreed that judgment shall be entered for the defendant.”
    On the case agreed, the Court betow gave judgment for the defendant; and Brent thereupon obtained an appeal to this Court.
    Cooke, for the appellant.
    The appellant’s case may be sustained on several grounds. 1st. If the bill of sale is the contract between these parties, it is competent to prove additional consideration to those expressed In the written contract; and under this principle, the appellant may prove the agreement to give him the refusal of the slave at the price for which he sold him. 3 Stark. Evi. part 4, 1004, and the case there cited; Mildmay’s Case, 1 Coke’s R. 176; Bedell’s Case, 7 Id. 39; 2 Roll’s Abr. 786; The King v. The Inhabitants of Scammonden, 3 T. R. 474.
    2d. The bill of sale is an expression of only a part of the contract; and the remainder thereof may be proved by parol. Jeffery v. Walton, 2 Eng. C. B. R. 38S.
    *3d. The bill of sale was never intended to be the contract; but was a mere part execution of a parol contract previously made. By this paper, Brent conveyed the slave to Richards, and warranted the soundness of, and title to the negro; but it was no more the contract than was the order to his brother to deliver the negro to Richards. The opinon of Marshall, C. J., in Hunt v. Rousmanier, 8 Wheat. R. 1.
    4th. The contract entitles Brent to damages for the difference between 47S dollars, the price at which Richards purchased, and 1000 dollars, the price at which he sold.
    Beigh, for the appellee.
    We are in a Court of haw; which is not competent to administer the equities between these parties. This Court can only decide upon their legal rights. .
    We say that the bill of sale is the contract; and that where there is a deed expressing the contract between the parties, Courts of Eaw cannot go beyond the deed, though Courts of Equity may. This subject is fully considered in 3 Stark. Evi. part 4, p. 995; and the rule laid down is, that where a consideration is expressed in the deed, you may prove a consideration of the same nature, but not one of a different nature. 3 Stark. Evi. 1004, 1005. What is the case here? The bill of sale expresses the consideration of the contract; and this cannot be varied. 3 Stark. Evi. 1006; Bano v. Neale, 3 Eng. C. B. R. 267.
    The cases cited by the counsel for the appellant were not at law. It is not denied that equity would have relieved the appellant, if he had resorted to that Court; but he has chosen to come into a Court of Baw, and here he cannot get relief. The only case at law was the case of Jeffery v. Walton ; and the writing there was not a deed, but a mere memorandum of an agreement.
    *As to the amount of damages, according to Brent’s own shewing, he lost but 225 dollars.
    
      
      Written Contracts — Parol Evidence — When Admissible. — In Tuley v. Barton, 79 Va. 392, it is said: “Parol evidence will not be received to engraft upon, or incorporate with a valid written contract, an incident occurring contemporaneously therewith and inconsistent with its terms. In other words, no new words can be added, nor, when the meaning is clear and unambiguous, can any other construction be given than what the written words naturally import. But purol evidence is admissible to show additional independent facts, contemporaneously agreed upon and not inconsistent with or contradictory of the contract, so far as reduced to writing. Such was the case in Brent v. Richards, 2 Gratt. 542.” To the same point, see the principal case cited in Towner v. Lucas, 13 Gratt. 713, 723; Vance v. Snyder, 6 W. Va. 34.
      See also, foot-note to Towner v Lucas, 13 Gratt. 705; monographic note on “Evidence.”
    
   STANARD, J.

The binding force of such a contract as that on which this suit is brought, and which is admitted by the case agreed, is not contested. The objection to the appellant’s recovery is not founded on the intrinsic invalidity of such a contract, but on the effect ascribed to the bill of sale under his hand and seal, on the legal remedy on the parol contract which formed a part, or was concomitant with the bill of sale. The effect of that deed, it is contended, is to intercept or defeat the remedy at law on the parol contract of the vendee with the vendor; and compel the vendor to seek relief in equity.

If the bill of sale intercepts or defeats the legal remedy-on the parol contract intrinsically valid, it must so operate either by merging the parol contract, or by way of estoppel, excluding parol evidence of any matter except that which is expressed on the face of the bill of sale. It cannot operate by merging the parol contract, because the contract of the vendee cannot be merged by the deed of the vendor. It is not an ■estoppel in .evidence of any matter not inconsistent • with and contradictory of it; and here the deed is but • an execution of the contract on the part of the vendor. This contract is neither inconsistent with nor contradictory of the bill of sale. At most it is but additional. The deed but put the property in the condition in which the contract sued on begins to operate. It was but the execution of this contract, on the part of the vendor; the necessary preliminary to make the case which is the subject of the vendee’s contract, and on which his contract is to operate.

If the appellant is entitled to recover, the measure of damages is free from all reasonable doubt. The difference between the price at which the appellant was entitled *under the contract to repurchase the slave, and that, at which the appellee sold him, is the amount that the appellee made, and the appellant lost, by the violation of the contract; and that is the proper measure of damage.

My opinion is, that the judgment of the Court below should be reversed, and judgment entered for the appellant for 525 dollars, with interest from the 31st of May 1836, till paid, and costs.

The other Judges concurred. Judgment of the Court below reversed and judgment entered for the appellant.  