
    Perry vs. Pearson and Anderson.
    Where the reading of a deposition is rejected at the hearing of a cause in equity, and no bill of exceptions is taken and filed showing the grounds of such rejection, and the cause is taken up by appeal, the deposition rejected is not a part of the record, and its contents cannot be regarded in the supreme court.
    Where there is a parol condition made to a written contract, which is understood by the parties, but by fraud or mistake not inserted in the contract, the court will reform the contract according to the intent and understanding of the parties; but such parol condition must be sustained by full, clear and unequivocal proof, and in the absence of such proof the written contract will be adjudged to contain the true intent of the parties.
    On the 11th day of February, 1833, Abel Pearson deposited in the office of the clerk of the federal district court for the eastern district of Tennessee the title of a book in the following words: “An analysis of the principles of divine government, &c. a dissertation on the prophecies in reference to the rise and fall of the beast, the cleansing of the sanctuary, the beginning and duration of the millenium,” &c. to which he claimed a right and obtained a certificate according to law from the clerk of said court.
    A limited edition of this theological work was published, and the author, Pearson, believing that if it was re-published in a more creditable edition the sale would be profitable, proposed a sale of the copy-right to Silas Perry and James Perry. After some negotiation they entered into an agreement on the 20th day of May, 1834. This agreement witnesses that “the said Pearson hath bargained and agreed with the said Perrys, and by these presents doth bargain, grant and transfer to them, the said Perrys, the full liberty and right of printing and publishing in Cincinnati, in the State of ■ Ohio, four thousand copies of a book entitled “An analysis of the principles of divine government,” &c. (the right whereof said Pearson claims as author, according to the act of Congress of the United States in such case made and provided,) and also the right of using and selling to others to be used the said four thousand copies in any of the States west of the Blue Ridge. And in consideration of and for which right the said Perrys do bargain a-nd agree to pay unto the said Pearson or his heirs the sum of one thousand dollars on or before the first day of September, 1835; and it is agreed that they will pay it all or a part sooner if they can. And it is further agreed that the said Perrvs shall have the full liberty and right of printing and publishing at the same time and place any number they please over and above the aforesaid four thousand copies, and use, and sell them to others to be used, in any of the States west of the Blue Ridge; and the said Perrys agree and promise to pay to the said Pearson, of his heirs or assigns, twenty-five cents for each copy by them so printed and published, on or before the first day of March, ’1836. And it is further agreed that the said Perrys shall have the liberty and right of printing and publishing and selling as aforesaid any number of copies of the said book from time to time for two years from the above date; and the said Pearson is not to have any others printed anywhere else in that time west of the Blue Ridge; and the said Perrys agree and promise to pay to said Pearson, his heirs or assigns, twenty-five cents apiece for each copy so printed and published by them within six months after such printing and pub‘ lishing the same.”
    This was signed and sealed by Abel Pearson, and by Silas Perry for himself and lor his brother, James Perry, who was not present at the time of the execution of the contract-.
    Silas and James Perry issued a prospectus to obtain sub= scribers to a new edition of this work, applauding the work in the highest terms of eulogy, and having attached thereto the names of various clergymen, expressing their approbation of the character and contents of the proposed publication. They however failed, after some exertions, to obtain more than about one hundred subscribers to the work, and abandoned the publication in despáir. Péarson demand-, ed the monéy of the Perrys after the time of payment of the one thousand dollars had arrived. Silas Perry insisted that it was understood by them at the time of the execution of thé agreement that if one thousand good subscribers' could not be obtained the agreement should be null and void', and refused to pay. On the 22d day of April, 1837, Pearson assigned the article of agreement to Thomas A. Anderson for value received of him, and Anderson instituted an action of covenant in the circuit court of Monroe county against Silas and James Perry. To this action James Pérry pleaded non est factum, and thereupon a noli prosequi was entered against him, and a judgment was rendered on thé 16th day of May, 1838, against Silas Perry on the article for the sum of one thousand one hundred and fifty-two dollars and fifty cents an<f*costs.
    On the 31st July-, 1838', Silas Perry filed his bill in the chancery court át Madisonville, in the eastern division of the State, against Thomas A. Anderson and Abel Péarson. This bill sets forth the article of agreement above alluded to, and charges that when the contract was made it was distinctly understood between the said Silas and Pearson that if a thousand good and solvent subscribers could not be obtained that the publication was. not to proceed, and the contract was t'o be null and void; that it was not then reduced to writing; that it was agreed that Pearson should draw the article of agreement, he being a “man of holy vocation” and “part of a lawyer.” The bill charges that whfen Pearsqp presented the bond or contract complainant objected to signing it, because it did not contain the agreement between the parties, to wit, the condition that complainant and his brother were to pay the money and publish upon the condition alone that they could obtain one thousand solvent subscribers; that Pearson admitted that such was the contract and such was their understanding, but said he had read law, and was part of a lawyer, and that such a condition inserted in the bond or instrument would make it void and of no effect; that such conditions were not inserted in such instruments? that it made no difference about them if they were understood between the parties; and that in the present instance it was of no consequence, as he and complainant understood each other, and the instrument would he of no effect if they did not get the subscribers. The bill further charges that, under the influence of the belief of these statements, be signed the article above set forth, and also signed the name of his brother, James Perry, then absent in the State of North Carolina; that when James Perry returned he would not agree to be bound by the contract signed by complainant, but that he would engage in the publication of the work if the thousand subscribers could be obtained, and not otherwise. The bill charges that they accordingly issued a prospectus and employed an agent to procure subscribers, but could get only one hundred, and that they accordingly abandoned the publication, and notified Pearson of the fact.
    The bill charges that the assignment to Anderson was merely colorable and made for the' purpose of carrying into effect more fully the fraud upon complainant, and prays that the article of agreement might be declared void, and that Anderson and Pearson might be perpetually enjoined from enforcing the judgment at law.
    On the 17th day of December, 183S, Anderson filed his answer. He declared that he gave full value for the article of agreement in the course of trade, and expressed his conviction that the judgment was just and ought to be enforced.
    On the same day Pearson filed his answer. He stated that the sale of the right of publishing the work was absolute, as specified in the article of agreement; “that not one word was said to him or by him about getting a thousand subscribers as a condition of fulfilling the agreement; that no such proposition was ever made to him or by him; that he never thought of making such, and that nothing had occurred to induce complainant to think so.”
    PJe further stated that James Perry on his return home was fully satisfied with the arrangement made, and that one Samuel Blackburn wished to become a party with complainant in the publication, and that complainant was willing that he should comejn, but that the money was to be paid before Blackburn could b'e able (as he stated) to make the payment. He denied all fraud, and alleged that he had transferred the article of agreement to Anderson for a full and valuable consideration on the day of the transfer endorsed thereupon.
    Complainant filed a general replication to the answers of Anderson and Pearson.
    Three depositions were taken in this case, all by'complainant. Murphy proved that his services were engaged to get subscribers to the work, that he was a minister of the gospel, and that he made due exertions and could get an inconsiderable number only.
    James Perry stated that he was not present at the first conversation that took place between Silas Perry and Pearson, nor at the time the written contract was signed by them; that he was present however at a conversation which did take place after the first conversation and before the signing of the deed; that they then agreed that if one thousand subscribers could be obtained he would print and publish four thousand copies of the work, for which Pearson was to receive twenty-five cents for each copy, or one thousand dollars for the whole number, and that the obtaining the one thousand subscribers was an absolute condition to the contract; that he left the neighborhood, and on his return he found the prospectus yi the printing office at Madisonville, and saw for the first time his name signed to the article of agreement, and finding no condition in the contract he denounced the contract and refused to be bound by it. Pie stated that his brother then informed him that the condition was understood between him and Pearson; that he then took a prospectus and went to the State of Ohio and back and used great exertions to get subscribers, but utterly failing to get any, he advised his brother to go and “lift the instrument.”
    Perry further stated that he was present at the time when Blackburn wished to become a party to the contract; that Blackburn objected to going into the contract, as it did not embrace the contract as he had understood it. He heard on that occasion his brother insist that it was part of the contract that if one thousand subscribers were not obtained the contact was not to stand. He did not hear the entire conversation which took place on the occasion referred to, but Pearson did not in his presence deny the contract as it had been stated by Silas Perry.
    Blackburn stated that Perry had informed him that he had made a contract with Pearson for the publication of four thousand copies of “Pearson’s Analysis,” and desired witness to go into partnership with him; that he informed him that if one thousand good subscribers could be got the publication was to go. on, if not, then the contract was at an end; that he professed a willingness to become a party to the contract, and according to agreement, he, Pearson and Perry met at Silas Perry’s. The article was read; witness then took out Silas Perry an,d told him that the contract was not written a,s he had stated to him it was; that by that bond he would have the money to pay whether he got the subscribers or not; that Perry appeared alarmed. Witness then told him that if Pearson would give another bond or instrument showing the contract he would be. willing to go into it. Pearson and Perry then had some conversation, the purport of which he did not distinctly recollect, but he recollected that Perry asked Pearson whether, in the event that the subscribers could not be obtained, the bond was to be binding! that Pearson evaded answering this question, but stated that the contract was written as they had agreed; that the matter was understood between them; that the subscribers could be got, &c.; that Perry then stated that as his brother and Mr-. Blackburn did not like it, it might some day come against him or his heirs; that Pearson replied, “go on anck get the subscribers and there would be no difficulty about it.” Witness then told Pearson he would be willing to go into the contract if he would put the condition, that it was not to be binding without the subscribers could be got, on another piece of paper; Pearson smiled and said he was a “part of a lawyer, an.d never saw a contract on two pieces of pa-pel-,” and» in reference to an interlineation which witness suggested, Pearson objected that it “would not stand in law.”
    Blackburn stated, on cross-examination, that Pearson never did admit in his presence that the contract as reduced ta writing was not the true contract.
    
      At the March term, 1839, the cause came on for final hearing. The following entry was then made:
    “On the hearing of this cause defendants objected to the reading of the deposition of James Perry, on the ground that he was interested, which objection was sustained by the court and the deposition rejected.”
    No bill of exceptions was filed to the opinion of the chancellor in rejecting Perry’s deposition, nor any other notice taken of the same than the entry as above set forth.
    Chancellor Williams, being of the opinion that the proof sustained the allegations in the bill of complainants, decreed a perpetual injunction against the judgment, and ordered that defendants pay the costs of the suits at law and in equity.
    Defendants appealed from this decree to the supreme court.
    
      Jarnagin and Lyon, for complainant.
    The proof makes out a case of misrepresentation and fraud upon the part of respondent, Pearson, for which a courtJof equity willjafford relief. 1 Story’s Eq. 166-7, note 1. Misrepresentation of the law and undue influence afford ground for relief. Story, 140, 141, note. Confidence and trust reposed, and the relative character of the two parties, afford ground for relief. Story, 224. Fraud and damage coupled together entitle the party injured torelief in a court of justice. 7 John. Ch. Rep. 201. A court of equity will also reforma written contract where material stipulations have been added or omitted through fraud or mistake. 1 Story, 166: 1 Cox’s Rep. 502, 404-5, Osmend vs. Fitzroy: 3 P. Williams, 129: 2 P. Williams, 240: 2 John. Ch. 585. Cases of plain mistake or misrepresentation, though not the effect of fraud, are entitled to the interference of the court. Newland on Con. 432, ch. 28: 1 John. Ch. Rep. 606: 2 Ad. 203: Yesey, 317.
    
      Hynds, for defendants.
    The answer of Pearson fully and unequivocally denies that any condition constituted a part of the sale; alleges that it was an absolute sale, and the written contract was precisely what the contract was. There is no proof in the cause which contradicts the answer. The only deposition which contradicts the answer is that of complainant’s brother. This deposition was rejected by the court, is improperly in the record. No exception was taken in the court below to the rejection of the testimony. Barrow vs> 227¿MieZcm¿e?’, 1 John. Ch. Rep. 550. But if it were before the court the answer is only contradicted by one witness, and the other testimony in the cause sustains it.
    1. It is sustained by the instrument itself. The law is well settled that a written contract is supposed to contain the whole contract of the parties, and if by mistake or fraud a part is left out, it requires clear and irrefragible testimony to show it. 1 Story’s Eq. sec. 152, 153, 154 and 157: 2 John. Ch. Rep. 274,285,597,630: 3 Brown’s Ch. Rep. 192.
    2. The answer is sustained by the deposition of Blackburn. There is then no evidence to satisfy the rule that one witness, and circumstances proved by others, are required to outweigh an answer.
    3. But if it were proved there could be no relief; equity would not reform a contract for a misrepresentation of the law. 1 Story, 191, sec. 191, 111 and 113, where a similar case is put. Here the contract was signed deliberately.
    4. A written agreement merges all parol negotiations, &c. and a parol agreement cannot be set up as being made at the same time. 1 John. Ch. Rep. 273, Benedict vs. Linch: Roscoe’s Evidence, 9: Dawson vs. Walker, 1 Stark. 361: 1 Peters, 13.
   Per Curiam.

Upon the hearing of this cause in the chancery court the complainant introduced and offered to read in evidence the deposition of James Perry, which was objected to on the ground that the witness was interested in the matter in controversy, which objection was sustained and the testimony rejected, and there was no bill of exceptions to the opinion of the chancellor, by which the deposition is made a part of the record.

1. The first question presented for consideration is, whether this court can hare the deposition of said James Perry read as evidence in the cause? We think not. All depositions and other papers which are read as evidence before the chancellor constitute a part of the record in the case, and •will be heard by the supreme court upon an appeal; but those which upon motion are rejected as incompetent and illegal, and not therefore to be read, cannot be taken into consideration here unless a bill of exceptions has made them a part of the record. Depositions are frequently rejected for matter arising upon parol evidence; the interest of witnesses is often thus proved, and unless a bill of exceptions be filed, it is impossible for the court above to know for what cause the deposition was excluded.

2. But secondly, if this deposition could be read, does it, in connection with the other testimony in the cause, establish the position contended for by the complainant, that there was a condition to his contract by which he was not held to be liable for the payment of the thousand dollars unless one thousand subscribers for the book contracted for could be procured, and which was, by the fraud or mistake of the defendant, not inserted in the written evidence thereof? We think not; for although equity will relieve against omissions in written contracts, whether they have occurred by mistake or fraud, and will hear parol proof to establish the omission, yet the evidence must be clear and strong, proving it to the entire satisfaction of the court. Gillespie vs. Moore, 2 John. C. R. 585, and the authorities there cited. Such is not the proof under consideration. James Perry, if we could hear his testimony, was not present when the contract was reduced to writing, and therefore cannot know whether any of its terms were omitted or not. The testimony of Samuel Blackburn proves nothing but th'at there was an impression on his mind that there was a condition to the contract, though he admits that he could not understand the true contract, and that he never heard Pearson admit that there was a condition, but that he, on the contrary, always contended that he had drawn the instrument of writing embracing the contract as made. We would violate every principle of law upon this subject were we, upón this proof, to set up the condition to the contract, and that against the express denial of the defendant in his answer. We cannot do it.

We therefore, though with reluctance, reverse the decree of the chancellor and dismiss the bill.  