#### Andrew Gerrish Junior *versus*Calvin Washburn *et al.*

In an action brought to recover a sum of money for which the defendants had signed a writing in which they acknowledged that they had received the money of the plaintiff by the hands of B. “ to be accounted for with the plaintiff,” the defendants offered to prove by parol evidence, that before the writing was signed, the plaintiff, being indebted to L., and L. being indebted to the defendants, it was agreed that this money should be paid to the defendants in part payment of their claim against L., and in part satisfaction of L.’s claim against the plaintiff; that the money having been paid to the defendants, they signed the writing and passed the money to L.ss credit in their books. *Held,*that the parol evidence did not tend to vary the written contract, and was therefore admissible; and that it was a defence to the action.

This was assumpsit to recover the money mentioned in tile following contract: — “Boston, March 19, 1828. Received of A. Gerrish jun., by the hands of Mr. S. Brown, one thousand dollars, to be accounted for with Mr. Gerrish. Calvin Washburn & Co.”

At the trial, before *Putnam*J., the plaintiff, having proved the contract, rested his case. The defendants objecting that no demand on them had been proved, which they contended was necessary in order to support the action, the plaintiff offered to produce evidence of a demand, before the end of the trial, which being assented to, the trial proceeded.

The defendants then offered to prove, that before the making of the contract, the plaintiff was indebted to Lysander Washburn of New Bedford, and that Lysander Washburn was indebted to them ; and that it had thereupon been agreed, that the plaintiff should, out of the proceeds of some bank stock which he owned, pay to the defendants one thousand dollars on account of Lysander Washburn and towards the debt due from the plaintiff to Lysander Washburn; that a few days after-wards, the stock was sold by Stephen Brown as agent of the plaintiff, and the sum of one thousand dollars paid by Brown to the defendants, and the written contract was given by them to Brown, and was by him passed to the plaintiff; and that the defendants credited the amount to Lysander Washburn in their books.

The plaintiff objected to this evidence, on the ground that *344it was offered to alter, vary, or explain the written contract, which was on its face certain and unambiguous ; and the judge rejected it. The defendants were thereupon defaulted. If the evidence ought to have been admitted, the default was to be struck off, and a new trial granted ; otherwise judgment was to be entered for the plaintiff.

*Sumner*and Willis, for the defendants,

cited *Stackpole*v. .Arnold, 11 Mass. R. 32; *Wilkinson*v. Scott, 17 Mass. R. 257 ; *Griswold*v. *New York Ins. Co.*3 Johns. R. 319 ; *Shephard*v. Little, 14 Johns. R. 212 ; *Tobey*v. *Barber,*5 Johns. R. 72 ; *Barker*v. *Prentiss,*6 Mass. R. 434 ; *Davenport v. Mason,*15 Mass. R. 90 ; 3 Stark. Ev. 1015 to 1020, 1042, 1043, 1044, 1047, 1054 ; *Hunt*v. *Adams,*6 Mass. R. 519.

*Shaw*and *Bartlett, contra.*

Parker C. J.

delivered the opinion of the Court. We think there was a mistake at the trial, of *the*legal character of the paper offered by the plaintiff in support of his action, which mistake occasioned the rejection of the evidence offered in defence. It was treated as a promissory note or other contract for the absolute payment of money, and so that the defence proved went to alter or contradict it and therefore was inadmissible.

On the other hand, it has been treated by the counsel for the defendants, in the argument, as a mere receipt, which always is excepted out of the general rule which excludes parol evidence from affecting the import, effect or operation of a written contract.1

We view it in neither of these lights, or rather in both. It is evidence of a receipt of money from the plaintiff or his agent, with a promise to account for it with the plaintiff. This promise may be performed otherwise than by paying over the money to the plaintiff, and in any way conformably to the intention of the parties.

The evidence offered is supposed to prove, that by direction of the plaintiff the money was paid by his agent to the defend*345ants, for the purpose of discharging the plaintiff from a debt which he owed to Lysander Washburn ; that this was in pursuance of an agreement to that effect between all the parties. It was in fact a substitution of the defendants as the creditors of the plaintiff, instead of Lysander Washburn, and a payment of the debt by the proceeds of the stock sold through the intervention of Brown the agent. The credit given by the defendants in their books to Lysander, completed the transaction, and by showing this the defendants would perform their promise of accounting to the plaintiff. It is suggested, that the plaintiff may be still liable to the estate of Lysander Washburn ; but this cannot be, upon the facts proposed to be proved ; and the testimony of the defendants will discharge him from any claim.

A prevailing reason for rejecting the evidence was, that the agreement of the parties offered to be proved was before the making of the receipt, and that therefore the receipt should alone be looked to as the evidence of the final agreement. This is true as a general principle, in the case of contract, but this contract is of a peculiar species, and is apparently nothing but the execution, so far as it goes, of the previous agreement. The money was paid to the defendants by Brown the agent, by the direction of the plaintiff, in execution of the contract made by all the parties, he taking an accountable receipt for the plaintiff, and if the defendants are able to prove what they propose, they will account as was intended.

*New trial granted.*

1

 See *Griswold*v. *Messenger,*6 Pick. (2d ed.) 518, note 1, and cases cited , *Moore*v. *Shattuck,*4 N. Hamp. R. 229; *Schillinger*v. *M'Cann,*6 Greenleaf 364; *Hall*v. *Hall,*8 N. Hamp. R. 129.