#### *Potter *vs.*Hopkins.

Where a contract rests part *in writing*and part *in parol,*oral proof is admissible to'supply the deficiencies in the part written, if the contract be of such a nature as is not required to be in writing. 4

Where a plaintiff declares for the breach of a contract of sale of 1,000 bushels of wheat, and it turns out in proof that the quantity sold was 600 *or*700 bushels, a verdict for the plaintiff will not here be sot aside for the *variance*between the declaration and proof, although, according to the decision of the courts in England, the variance would be deemed fatal.

A verdict will not be set aside, even on a bill of exceptions, for the misdirection of the judge as to the *measure of damages,*where from the generality of the charge the jury might have received an erroneous impression, if it be manifest from the finding of the jury that injustice has not been done.

*319This was an action of *assumpsit,*tried at the Monroe circuit in April, 1838, before the Hon. Nathan Dayton, one of the circuit judges.

The suit was brought for the recovery of damages for the non-delivery of wheat sold by the defendant to the plaintiff. In the early part of the year 1836, the defendant contracted with the plaintiff to sell to him his wheat, supposed to be 600 or 700 bushels, at the Rochester price, and to deliver the same at the warehouse of the plaintiff before the first day of *July.*On the second day of *May,*the plaintiff paid to the defendant $500, and took a receipt in these words : “ Rec’d of H. S. Potter five hundred dollars, as advance on my wheat, to be delivered before the first of July, at the Rochester price.” The defendant refused to deliver the wheat; and in October, 1836, this suit was commenced. The declaration contained three special counts. In the *first count,*the plaintiff alleged that on the 2d March, 1836, the defendant sold him a large quantity of wheat, to wit, 1,000 bushels, to be delivered before the first of July then next, at the Rochester price, to be paid for as follows : $500 down, and the residue on the delivery of the wheat. He then alleged that he paid the $500, and was ready and willing to accept and receive the wheat, and to pay for the same at the rate or price aforesaid ; yet, that the defendant failed to deliver the wheat. The *second*and *third counts*were substantially like the *first, except that in the *third count*the quantity of [ *418 ] wheat was stated at 500 instead of 1,000 bushels.

A deposition of a witness which had been taken by the assent of the parties was read in evidence by the plaintiff. The witness proved the payment of the *$500,*and the giving of the receipt on the second day of May; that the terms of the agreement between the parties, which was settled upon two or three weeks prior to the giving of the receipt, were—that the defendant was to deliver to the plaintiff 600 or 700 *bushels*of wheat before the first of July at the plaintiff’s ware-house, and was to have the Rochester market price, at any time he might elect before that day. The defendant had the wheat on hand for sale at the time, and the quantity was estimated at 600 or 700 bushels. The defendant objected to so much of the deposition as tended to *vary*or *explain*the paper writing or receipt; but the objection was overruled, and the defendant excepted. The Rochester price of wheat about the first day of *July*was from $1.25 to $1.36 per bushel; and in *September*it rose to $2 per bushel. The counsel for the defendant insisted; 1. That the *written paper*or *receipt*introduced by the plaintiff, must be taken as the evidence of the contract between the parties, and that any *verbal agreement*made *prior to*or *at the time*of the execution of the paper writing in relation to the same subject, was merged in the written contract. 2. That the plaintiff could not recover upon the special counts of the declaration, by reason of the *variance*between the *contract in writing**320and that set forth in the counts. And 3. That for the same reason, he could not recover upon the *verbal agreement:*which objections were overruled by the judge, and the defendant again excepted. The counsel for the defendant then requested the judge to charge the jury, that the plaintiff was entitled to recover only the value of the wheat at the time specified in the contract for the delivery thereof. The judge declined to do so, and charged the jury that the plaintiff was entitled to recover the highest value of the wheat at any time before the trial, provided they should be of opinion that the suit was brought within a reasonable time. To which [ *419 ] charge the defendant excepted. The jury found a *verdict for the plaintiff with $713 damages. The defendant having procured a *bill of exceptions*to he signed, moved for a new trial.

*S. Stevens,*for the defendant,

insisted that the contract being reduced to writing, parol evidence, varying or enlarging it, was inadmissible ; that the plaintiff should have been nonsuited for the variance, between the proof and the contract, as set forth in the declaration, *Saund. on Pl. & Ev.*119; 2 East, 2 ; and that the judge erred in the rule which he submitted to the jury as the measure of damages.

*E. Darwin Smith,*for the plaintiff,

contended that the *receipt*was not *the contract*between the parties; it was mere evidence of a part performance on the part of the plaintiff of an agreement previously made. As to the *variance,*he argued that there was none of any materiality; and at all events that the judge correctly disregarded it. As to the damages, he insisted that the rule laid down by the judge was correct, as it regarded the $500 paid, and that it would be readily seen by a general calculation, that the jury had applied it no farther ; for the $500 paid, the plaintiff was entitled to recover all that the jury had given him. If no injury has resulted from the charge, a new trial should not be granted: 12 *Wendell,*41.

*Stevens,*in reply, said that the court could not know upon what basis the verdict was founded; the jury may. have made their estimate upon the whole quantity of 600 or 700 bushels, and for that reason the verdict should be set aside.

. *By the*Court,

Nelson, C. J.

The instrument in question does not purport on its face to be a complete arrangement between the parties; and if it may rest in parol, there can be no objection to the suppletory evidence given in the case. The authorities on this point are well collected, in *Cowen & Hill’s Notes, p.*1471-3. It was obviously given as an acknowledgment of part execution of a contract, referring to some of its terms, which I agree are binding as far as they go.

*321The *variance*between the declaration and proof, in respect to the quantity of wheat, would be fatal upon the English *authori- [ *420 ] ties, 1 *Saund. Pl. § Ev.*119; but was properly disregarded, according to the more liberal manner of viewing misdescriptions of the kind in this court. The court overlook these misdescriptions in pleading, unless they tend to mislead the adverse party. Ho such consequence can be urged here.

The measure of damages, in respect to the quantity of wheat paid for by the advance of the $500, was in the main unobjectionable, as laid down at the circuit, 7 *Cow.*681; and from the verdict it is apparent no more has been allowed than in justice belongs to the plaintiff.

Hew trial denied. ■