
    JOHN W. COX v. TITUS BENNET.
    Evidence is inadmissible of a parol agreement prior to or cotemporary with a written instrument and which varies its terms.
    A party to whom a condition or covenant is to be performed, may by acts, as well as words, enlarge the term of performance. And such an agreement to enlarge, is not void, because no consideration is expressed in it or otherwise proved.
    On application to set aside a judgment and execution, the costs are in the discretion of the court, and where both parties are wrong, each party should pay his own costs.
    The plaintiff entered up judgment against the defendant on a bond by virtue of a warrant of attorney, and issued execution thereon, with directions to the sheriff to levy 5141 dollars IT cents. The defendant applies to the court to set aside the judgment and execution on the ground, that nothing is due to the plaintiff according to the stipulation of an agreement between the plaintiff and Harris Cox of the one part and the defendant and Joseph Walton of the other part,, which is sufficiently recited in the opinion of the court delivered by the Chief Justice.,
    
      H. W Green for plaintiff.
    
      Saxton for defendant.
   Ewing, C. J.

On the 3d day of October, 1827, Titus Ben-net and Joseph-Walton, having jointly purchased certain real estate of Harris Cox, who is since dead, and John W. Cox, gave them their several bonds, with warrants to confess judgment for the payment of the purchase money. Beametgave two bonds, the one for 5000 dollars in one year with interest at six per cent, and the other for the like sum in one year with interest at five per cent. Walton also gave two bonds of the like-description. On the next day after the bonds, or under that date, Harris Cox and John W. Cox executed and delivered toBennet and Walton an instrument of writing wherein, after a recital of the bonds, is the following clause, which as its meaning is to be the subject of enquiry, I state at length. “ It is now amicably and mutually'agreed” by and between the said Harris and John W. 'Cox and the said Titus Bennet and Joseph Walton, that they, the said Titus Bennet and Joseph Walton, shall have the privilege of paying off the above bonds, yearly instalments of two thousand dollars of the principal.of the said bonds and the interest if they shall choose so to do ; and also that they shall not be compelled to pay off and discharge the said obligations any faster than by the annual payments of two thousand dollars with the interest which shall and may be due-thereon at the time of the said annual payments ; and also that they have liberty to pay off the bond which stands at-six percentum per annum interest first-.”

On the 23d November, 1827, Bennet paid the principal and ' interest then due on his bond for 5000 dollars, drawing interest at six per cent, and it was delivered up and cancelled-

On the 1st February, 1828, Bennet paid 750 dollars on the-other bond and a receipt for that amount was indorsed upon it.

On the 23d October, 1831, John W. Cox entered up judgment on this bond, by virtue of the warrant of attorney, and issued execution with direction endorsed to the sheriff to levy 5111 dollars 17 cents. Bennet has applied to have the judgment and execution set aside, insisting that according to the stipulation in the instrument, nothing was due to Cox when the judgment was signed. Cox, on the other hand, insists that it was rightfully entered, and the sum claimed was strictly due. He insists that he was entitled to receive the sum of 2000 dollars with the interest on the unpaid portion of the debt at the end of each year from the date of the bond, without regard to intermediate voluntary payments, or in other words, that notwithstanding the payments in November, 1827, and February, 1828, he was entitled to an instalment on the 3d October, 1828, and the like in the succeeding years; and that the instrument does not, if it speaks any other language, exhibit the real understanding and true agreement of the parties. To shew these more explicitly, he has offered the affidavit of Daniel Wills, the scrivener who drew the instrument, against which the defendant, Bennet, objects, and says it cannot be listened to without a violation of the rules of evidence. The parol evidence thus offered, is to shew what the parties declared at the execution of the instrument to be their meaning. Some doubt being suggested whether it was so drawn as to be sufficiently expressive, they talked over the matter, related what their agreement was, declared they fully understood each other, and concluded it was unnecessary to draw another instrument as the matter was so well understood. If the agreement as recollected by the scrivener corresponds with the import of the writing, his testimony is useless and improper. If it materially differs, the testimony is inadmissible. There is no pretence of more than one agreement, and that agreement the parties have thought proper to commit to writing. u Where the terms of an agreement are reduced to writing, the document itself being constituted by the parties as the true and proper expositor of their admissions and intentions, is the only instrument of evidence in respect of that agreement, which, so long as it exists, the law will recognize fox' the purposes of evidence.” Perrine v. Cheesman, 6 Halst. 174. Evidence is inadmissible of a parol agreement prior to, or cotemporary with the written instrument, and which varies its terms.” 2 Starkie, 1005. “To permit terms to be engrafted by mere parol evidexice upon a written agreement, would be attended with all the danger, laxity and inconvenience which the general rule is calculated to exclude, for an agreement might by such additional terms, be as effectually altered as if the very terms of the agreement had been changed by the operation of parol evidence.” Ibid. 1007. The ingenious attempt of the plaintiff’s counsel to avoid these rules by setting up, what he would prove by parol, as a distinct agreement subsequent to the writing, is entirely repelled by the cross examination of the scrivener, shewing clearly that there was but oixe agreement between the parties.

We are then to learn their intention from the instrument which I have already recited. And herein I do not find any serious difficulty or troublesome ambiguity. The bonds, according to their conditions, were- payable one year from their date. But by this agreement fairly called contemporaneous, Bennet axxd Walton were to have the privilege of paying them off by “ yearly instalments of two thousand dollars of the principal and the interest, if they chose so to do ; ” and they were ixot to “ be compelled to pay off and discharge the said obligations faster than by the annual payments of 2000 dollars, with the interest which shall and may be due thereon.” In the first place, the obvious construction of this agreement is, and herein I must entirely differ from the plaintiff’s counsel, that Bennet and Walton were to pay between them the 2000 dollars, or as their bonds were equal axid separate, each was to pay 1000 dollars. On the opposite construction, if each was required to pay 2000 dollars, then the two, contrary to the stipulation, would be xnade to pay 4000 dollars. In the xxext place, the sound construction appears to me to be that annual payments of interest were to be xxxade oxx whatever sums of principal rexnained undischarged. The obligees were xxot to require the principal money faster than at the rate of 2000 dollars by the year, but they were to receive the anmxal payment of iixterest. Intermediate payments voluntarily made, ought not to impair the rights and duties of the parties under the agreement. Anticipated payments of principal only, not of interest, could be made. Such payments alone could have been in contemplation. If by a voluntary payment, Bennet anticipated the stipulated time, his payment could only have been of so much principal and not for interest yet unaccrued; or only such interest as might be due at the time of payment, and the residue towards the principal. Requiring him to pay interest at the end of each year, on the unsatisfied principal, whatever he may have paid on account of principal, is not to compel him to pay faster than is provided for by the agreement. Suppose he paid strictly according to the article,

On the 3d October, 1828, he would have paid one instalment, $1000 00
A year’s interest at 6 per cent, on 5000 dolls. 300 00
A year’s interest at 5 per cent, on 5000 dolls. 250 00
1550 00
On the 3d October, 1829, another instalment, $1000
Year’s int’t on $4000, residue | gqq of bond at 6 per cent. }
Year's int’t on $5000 at 5 per ct. 250 1490 00
Paid 3d October, 1829, $3040 00

Suppose on the other hand, he anticipated the second of these instalments, and paid it with the first. It stands thus :

October 3, 1828, two instalments, , 2000 00
Year’s interest on 5000 dollars at 6 per cent. 300 00
Year’s interest on 5000 dollars at 5 per cent. 250 00
2550 00
October 3,1829. No instalment to be re- ) quired, being already paid, i
Year’s interest on 3000 dollars balance of \ 6 per cent, bond, j
Year’s interest on 5000 dollars at 6 per ct. 250 430 00
Sum actually paid 2980 00

It is thus demonstrated that by requiring the annual pajonent of interest, Bennet will not be compelled to pay faster than he has contracted to do.

Regulating our investigation by these views of the agreement, let us now ascertain the result.

On the 23d November, 1827, Bennet discharged the bond of 5000 dollars, payable at six per cent.. He paid thereby five instalments of principal, or in other words, as much principal as would have extended in point of time to the 3d October, 1832. Cox has no cause of complaint then, if he receives no more principal until that time. Bennet farther paid on the 1st February, 1828, the sum of 750 dollars. At that time there was an accrual of interest for three months and twenty-nine days, at five per cent, amounting to 80 dollars 75 cents ; so that the payment being first applied to the interest, there remained towards the principal, 669 dollars, 22 cents, and the principal of the bond was left to be 4330 dollars, 78 cents. This latter payment towards the principal, was consequently so much of the instalment which would have fallen due on the 3d October, 1833 ; leaving a balance of 330 dollars 78 cents, of that instalment to be then paid.

But the balance of principal remaining due on the 1st day of February, 1828, -being 4330 dollars 78 cents, interest on that sum up to 3d October, 1828, when the interest should have been paid, at 5 per cent, is

145 55
Interest on the same balance of principal from 3d October, 1828, to 3d October, 1829, is 216 53
Interest from 3d October, 1829, to 3d October, 1830, is 216 53
Interest from 3d October, 1830, to 3d October, 1831, is 216 53
795 14

And hereby the sum is shewp which ought to have been paid by Bennet on the 3d of October last, in order to fulfil his agreement. On the 3d of October next, he will be bound to pay the sum of 216 dollars 53 cents, and on the 3d October, 1833, the farther sums of 330 dollars 78 cents, the balance of the instalment then due, and 216 dollars 53 cents, for one year’s interest on the whole, and there will then remain 4000 dollars of the principal to be afterwards extinguished with its accruing interest.

On these principles and by this mode of adjustment, Bennet will be compelled to pay no faster than the agreement stipulates; and on the other hand he will gain no undue advantage by the payments voluntarily made and received for the mutual convenience of the parties in anticipation of the times specified by their contract.

The position taken by the counsel of the defendant, that inasmuch as he had paid portions of the principal sooner than the stipulated times, he ought to be allowed an interest on the excess over the instalments, until the time they became respectively due, is wholly inadmissible. Interest was to accrue on' the principal, and hence no rebate for prompt payment can be demanded. Great injustice would be imposed on Cox by such a mode of adjustment, as will be plainly seen by supposing that Bennet had paid in one day after the agreement the whole debt, for he would then by such a charge for interest have been entitled to deduct a portion of the principal.

Two positions which were maintained by the plaintiff’s counsel on the argument, require to be noticed. First, that the agreement was void because no consideration was expressed in it or otherwise proved. I can find no authority to support this position. The party to whom a condition or covenant is to be performed, may by acts, as well as words, enlarge the time of performance. No more full consideration was proved in Fleming v. Gilbert, 3 John, 528, where the time of the performance of the condition of a bond was enlarged by a parol agreement. Langworthy v. Smith, 2 Wendell, 587. 2d. The stipulated sum not having been paid at the day, the agreement, it is said, was at an end, and Cox was entitled to claim the whole amount of his bond. Such result I think, by no means follows. He may compel the payment of what is due by the agreement, but no-more. There is nothing in the terms or nature of the agreement which renders it in such event, void.

From the view I have taken of the subject, it appears to me, .as already shewn, there were 795 dollars 14 cents due to Cox, when the judgment was signed. Although this may have been for interest only, the judgment was regular, for it may be entered up for default of the payment of interest, where interest has become payable, although the day of payment of the principal .may hot have arrived. Warwick v. Matlack, 2 Halst. 165, is to this point. The case is correctly reported. There was no .clause in the bond, in that case, as the counsel of Bennet supposed, making the principal due on default of the interest.

Inasmuch as there was a sum due to Cox when the judgment was entered, the motion to set it aside cannot prevail. The in.dorsement on the execution should be properly corrected. The -costs of this application are in the discretion of the court, and .as both parties are wrong, the defendant having by his rule to shew cause sought for more than he was entitled to, each party .should pay his own costs.

Let the indorsement be corrected- without costs.

Cited in Stryker v. Vanderbilt, 1 Dutch. 495-505; Vanhouten v. McCarthy, 3 Gr. Ch. R. 148; Leigh v. Savidye, 1 McCarter, 130; Tompkins v. Tompkins, 6 C. E. Green, 339.  