
    Crofoot v. Truax.
    APPEAL from the Orange Circuit Court.
   Ray, C. J.

The appellee brought his action, alleging that he sold and conveyed to the appellant certain real estate, for the sum of eleven hundred dollars; that at the time of said sale, the appellant gave to the appellee an order upon A. §• H: Trueblood for nine hundred and seventy-five pounds of tobacco, of good merchantable quality, at one dollar per pound; that though often demanded, the tobacco has never been delivered. The appellant answered payment, and that the order was received in full satisfaction of the sum of nine hundred and seventy-five dollars, and also answered in denial. A reply, denying that the order was received in satisfaction of the debt, was filed, and in denial of the plea of payment. A trial resulted in a finding for the appellee. On the trial, the appellee testified that he was to have from Crofoot, good sound manufactured tobacco, worth one dollar per pound; and that if the tobacco should not prove good, he was to return it, and Crofoot was to pay the freight and to give other good tobacco in its place, or pay in money. The tobacco offered to him was not such as he agreed to accept. He notified Crofoot, who denied any liability on his part. It is objected that the court should not have .admitted this evidence, on the ground that it varied the terms of the contract contained in the order. There is nothing in the objection. The order was simply' a request upon a third party to deliver certain tobacco to the appellee. It does not profess to contain anything more of the contract between the parties. Whether the order was received in satisfaction of the debt, or whether, if the order was not filled, the appellant was to pay the money, was a matter outside of the purpose for which the order was given, which was to secure the delivery of the tobacco. Such proof,could in no way contradict or vary the terms of the order.

A. M. Black and F. Wilson, for appellant.

A. J. Simpson, for appellee.

The judgment is affirmed, with three per cent, damages and costs.  