
    A. Marks v. Y. L. Robinson.
    Columbia,
    May, 1828.
    In action of covenant for not employing plaintiff as clerk, tlie declaration averred, that on the day stipulated in the covenant plaintiff was ready and tendered his services to defendant; &c. The evidence was, that on the day stipulated, plaintiff was sick, and unable to attend to business, and that defendant agreed to dispense with his services, until he recovered ; that on his recovery at a day subsequent, he tendered his services to the defendant, but that the latter then refused to employ him. Held, that the proof did not support the allegation; and nonsuit ordered for the variance.
    In an action of covenant, if plaintiff aver, that he was “ ready at the day ” to perform all the covenants on his part to be performed, he cannot recover on proof, that the defendant had consented that the time should be enlarged, and that he was ready at the day substituted. But if the declaration contain appropriate averments, it seems that the plaintiff may recover on such proof, although the agreement to enlarge the time was "by parol, vide 1 Esp. N. P. C. 34. andHotham v. East-India Company, Doug. 272.
    Tried before Mr. Justice Richardson, at Columbia, Spring Term, 1828.
    This was au action of covenant on articles of agreement under seal, by which the defendant had covenanted to employ the plaintiff as clerk in a mercantile establishment, then about to be opened by the defendant, for the term of one year, to commence on the 1st of October, 1824, at the yearly salary of four hundred dollars per annum, payable quarterly. And the plaintiff averred, that on the said 1st day of October, and always after-wards, during the said term of one year, he was ready and willing, and offered to fulfil all the covenants by him to be fulfilled and performed, according to the tenor and effect of the said articles ; but that the defendant did not so employ the plaintiff as clerk, nor pay him the said sum of four hundred dollars according to the tenor of his said covenant.
    On the trial, the plaintiff proved, that on-the first of October, 1824, he was sick, and unable to attend to business; but sent a messenger to the defendant to inform him of it, and that the defendant agreed to dispense with his services until he should have recovered. That on the 20th of October plaintiff, having recovered his health, went to defendant and tendered his services, but that the latter then refused to receive or employ him.
    The defendant moved for a nonsuit on the ground, that the plaintiff had made out no ground for recovery in this form of action ; and in any case, that the proof did not support the allegations in his declaration* The presiding Judge refused the motion ; and the jury found for the plaintiff, two hundred- dollars. The defendant now renewed his motion for a nonsuit in the Court of Appeals.
    M’CniNTocK, for the motion,
    cited Archbold’s Civil Pleading, 98, -9, and Littler v. Holland, 3 T. JR. 590.
    Gregg, contra.
    
    Contended, that the evidence did substantially support the allegation, that the plaintiff was ready on the day. His message to the defendant was equivalent to a tender of his services on the day ; and if the defendant had refused him permission to stay at home, it could only have intitled him, at most, to claim an abatement of the salary, by way of discount, and not a general discharge from his covenant. If equivalent to a tender, it supported the averment of a tender; and a tender was all which was necessary to intitle plaintiff to performance by defendant. The mistake is in supposing this to be a new agreement. Had it been so, being parol, it would have been inadmissible to vary the covenant. 15 East, 584. 1 Johns. Cases, 22. 3 M’Cord, 245. To have averred it in the declaration, would have made the latter subject to a demurrer; unless the averment were regarded as surplusage. If, therefore, the plaintiff is intitled to recover at all, it is under the very averment contained in his declaration : And whether he was intitled, was a question for the jury, which they have decided in his favor.
   Johnson, J.

delivered the opinion of the Court.

The case of Littler v. Holland, 3 T. R. 590, is decisive of the question raised here. There the plaintiff covenanted to build two houses by a certain day; and in an action for the price to be paid for them, averred that they were built within the time. It was held, that proof, that the time had been enlarged by parol, did not support the averment; and Lord Kenyon, who delivered the opinion of the whole Court, says, “thispoint is so clear, that I am not inclined to grant a rule to shew cause. The declaration charges that the parties had stipulated by deed, toper-fem a specific thing on a certain day; then if the plaintiff who sues on that contract, be not bound to prove it as laid, the defen-dent has no notice of that which he is called to answer.”

The doctrine of Lord Ellenborough in White v. Parkin, 12 East, 584, that where a contract is under seal,' the parties cannot dispense by parol with the performance of any of the covenants in it, and which has been referred to by the counsel opposed to the motion, would, if literally applied, be destructive of the plaintiff’s case; for it is not pretended that he was ready, or offered to perform his part of the contract, with respect to the time at which his services were to commence; and the very foundation of his claim to maintain this action is, that the defendant agreed to dispense with it by parol.

The general rule clearly is, that parol evidence is inadmissible to add to, vary, or contradict the terms . of a written contract. But I am unable to perceive, that this rule has been violated in the evidence given in this case. By the terms of the covenant on which his action is founded, the plaintiff was bound to render the defendant a year’s services as clerk, for which he was to pay him four hundred dollars; and the agreement to dispense with those services, until he should recover his health, neither adds to, varies, or contradicts the deed, but, on the contrary, fully recognizes its existence and legal operation. ' The case of Fleming v. Gilbert, 3 Johns. 528, is in point. That was an action on a bond, conditioned that the defendant should, by the 1st of January then next ensuing, procure and deliver to the plaintiff a certain bond and mortgage, and discharge the same from the record of the county, &c. The defendant offered to prove, that it was agreed between them by parol, that he should have until the 1st of June after to perform the covenants. The Judge on circuit rejected the evidence as a ground of defence, but suffered it to go to the jury in mitigation, and a verdict was found for the plaintiff for six cents damages ; but on an appeal to the Supreme Court, it was held, that the evidence was admissible as a matter of defence. The same doctrine is laid down in the case of Keating v. Price, 1 Johns. Cases, 22. On the merits of the case, therefore, I am with the plaintiff; but, as before shown, the proof did not. support the averment in his declaration, and on that ground the motion for a nonsuit must prevail.

Motion granted.  