#### George Munroe *versus*Thomas H. Perkins.

A contract under seal may be waived by a parol agreement; more especially if the parol agreement shall be executed.

Where the plaintiff, by an instrument under seal, agreed to erect a building at a fixed pifce, which was not an adequate compensation, and having done part of the work, refused to proceed, but upon a parol promise by the defendant that he should be paid for his labor and materials, and should not suffer, he went on and finished the building, it was *held,*that he was entitled to recover in assumpsit upon the parol promise.

Where, by a contract under seal, two persons agreed with the plaintiff to pay him a fixed sum for building a house, and both superintended the work, and in the absence of one, the other acted, but always with a joint view to the same object, it was held, that a parol agreement by each, at different times, to waive the sealed contract and to pay the plaintiff a reasonable compensation, was a joint promise.

Where the judge takes minutes of the testimony of a witness at the trial of a cause, and in his report of the case mistakes the evidence, the deposition of the witness cannot be taken by one party for the purpose of correcting the report, without the assent of the adverse party. But the witness’s affidavit may be taken as a foundation for a distinct motion for a new trial. (Note.)

Indebitatus *assumpsit*for work done, materials found, money paid, Sic., brought against the defendant jointly with William Payne, who died after the action was commenced.*

At the trial before the chief justice it appeared, that in 1821

the plaintiff was employed by Perkins and Payne to build a hotel at Nahant, which was begun in that year and finished in 1823.

The general defence was, that there was a special contract, and that the work had been paid for according to the terms of that contract.

For the purposes of this case it was admitted, that the amount of expenditures made and incurred by the plaintiff in and about the work, exceeded the amount of the payments made to him.

It appeared that in 1821, a number of persons associated *304themselves for the purpose of erecting a hotel at Nahant, and subscribed certain sums of money therefor ; that Perkins and Payne were subscribers and were the agents of the association, which was to be incorporated as soon as possible, and which was incorporated accordingly in February 1822.

The defendant offered in evidence an agreement under seal, dated October 24th, 1821, wherein the plaintiff engages to build the hotel according to a certain drawing and description, and the defendant and Payne, in behalf of their associates, agree to pay the plaintiff therefor $ 14,500 as the work advances.

T. W. Sumner, a witness called by the defendant,

testified that the work was executed upon the basis of the drawing and description referred to in the sealed contract; that there were some deviations, consisting of additional work; that this was considered as extra work, not included in the contract, and was paid for separately according to its full cost and value.

To prove a waiver of the special contract, the plaintiff intro duced several witnesses. J. Alley testified, that in 1825 he said to the defendant, it was a pity Munroe had undertaken to build the hotel; to which the defendant replied, that Munroe would not lose any thing by it, and that they had agreed to pay him for every minute’s work and for all he had purchased. J. Mudge testified, that in the spring of 1823 the plaintiff was indebted to the Lynn bank on a note for $ 1100, which he wished to have renewed, but that the directors were not satisfied of his solvency ; that in April of that year, the plaintiff came to the bank with Payne, who said he was the agent who attended to the business of the Nahant hotel in the absence of Perkins, who had gone to Europe ; that be wanted to get from the bank some indulgence towards the plaintiff; that the corporation would leave the plaintiff as good as they found him ; they would pay Munroe for all he should lay out; that Munroe should not stop for want of funds ; that he (Payne) knew Perkins’s mind upon the subject; that the bills would be paid, and the plaintiff should not suffer. W. Johnson tes tilled, that on the strength of this representation of Payne, the bank renewed the plaintiff’s paper. W. Babb testified, that in May 1822 the defendant asked the plaintiff how he got on ; that the plaintiff said, poorly enough ; that the defendant told *305mm he must persevere ; the plaintiff said he could not without means ; and the defendant repeated, you must persevere, and added, you shall not suffer, we shall leave you as we found you.

The defendant objected to this evidence, that it was insufficient in law to set aside the special contract ; that it did not amount to a waiver of the original contract, but so far as it proved any tiling, it was evidence of a new express promise, which was without consideration and from which no implied assumpsit could be raised. Also, that the conversation with Perkins at one time and with Payne at another, were not joint promises and created no joint cause of action, but that the liability, if there was any, was several.

A verdict was taken by consent, subject to the opinion of the Court.

S. *Hubbard*and *F. Dexter,*for the defendant.

If the special contract under seal is a subsisting contract, assumpsit will not lie. The plaintiff says, that though it may have been binding, yet there is a parol contract in addition. But the testimony cannot be received to show a waiver, for no *sealed*instrument can be waived by parol. 3 Stark. Ev. 1002; Com. Dig. *Pleader,*2 *W*35, 2 *V*11 ; ibid.*Accord, A*2 (cites 6 Co. 44 and 9 Co. 79), *B*2 ; 1 Phil. Ev. (2d ed.) 444 ; *Kelleran*v. *Brown,*4 Mass. R. 443; *Braddick*v. *Thompson,*8 East, 344 ; *Roe*v. *Harrison,*2 T. R. 425 ; *Sellers*v. *Bickford,*8 Taunt. 31 ; *Cordwent*v. *Hunt,*ibid. 596. In *Fleming*v. *Gilbert,*3 Johns. R. 528,, the acts done were equivalent to performance. In *Hill*v. *Green, 4*Pick. 114, [2d ed. 116, note 2,] there was a mutual abandonment of the contract. So in *Raymond*v. *Bearnard,*12 Johns. R. 276. Here the evidence is only of an executory agreement on one side to abandon ; but the whole evidence shows that the parties intended, not to waive,- but to pursue the written contract. The evidence "s of a promise to give more than the stipulated price for performing it; which cannot be a waiver. *Price*v. *Dyer,*17 Ves. 364. If any thing, there was a variation only, but a contract under seal cannot be varied by a parol agreement. Here the parol agreement is contrary to the written contract; as the latter fixes the price, and the former leaves it unlimited. A change *306respecting the time or manner in which the contract shall be performed, is allowed in cases of contracts in writing merely, but not where they are under seal. 3 Stark. Ev. 1C02 and notes; *Leslie*v. *De La Torre,*cited in *White*v. *Parkin,*12 East, 583 ; *Thresh*v. *Rake,*1 Esp. R. 53 ; *Cuff*v. *Penn,*1 Maule & Selw. 21 ; *Littler*v. *Holland,*3 T. R. 590, and *Warren*v. *Stagg,*there cited ; *Davey*v. *Prendergrass,*2 Chit. Rep. 336 ; *Thompson v. Brown,*7 Taunt. 656, where the cases are reviewed.

The parol promise was *nudum pactum.*A promise to tase less than is due, is without consideration ; so of one to pay more. The plaintiff did not, in consequence of the new promise, undertake to do any thing more than he was already bound to perform. Chit. Contr. 12 ; *Fitch*v. *Sutton,*5 East, 232 ; *Willis v. Peckham,*1 Brod. & Bingh. 515 ; *Miller*v. *Watson,*5 Cowen, 196 ; *M'Donald*v. *Neilson,*2 Cowen, 139 ; *Harris*v. *Watson,*Peake’s R. 72; *Stilk*v. *Meyrick,*6 Esp. R. 129; *Newman*v. Walters, 3 Bos. & Pul. 612 ; *Cabot*v. *Haskins,*3 Pick. 83. If the plaintiff had not gone on, he would have been liable on his covenants, and have forfeited his claim to compensation for the part he had performed. To be binding, the promise must be reciprocal; but Perkins could have had no right of action against the plaintiff upon the parol contract as proved. *Cooke*v. Oxley, 3 T. R. 653 ; *M'Culloch*v. *Eagle Ins. Co.*1 Pick. 278 ; *Bates*v. *Cort,*2 Barn. & Cressw. 474. In *Lattimore*v. *Harsen,*14 Johns. R. 330, there was a penalty in the original contract, which the plaintijff might incur if he chose, and he gave notice that he abandoned the contract ; so that there was a consideration there for the new promise of the defendant.

*Ward, contra,*

said the sealed contract had not been varied, but that it had been abandoned by both parties ; and that this might be proved by parol. Where a release or a particular discharge is alleged, parol evidence is not admissible ; but where the instrument is destroyed by the parties, or the seals torn off, or the contract is otherwise abandoned or rendered a nullity, such evidence will be admitted. *Ratcliff*v. *Pemberton,*1 Esp. R. 35; *Milton*v. *Edgworth,*5 Bro. Parl. Cas 313; *Legal v. Miller,*2 Ves. sen. 299; *Pitcairne*v *Os**307*bourne,*ibid. 376 ; 2 Eq. Ca. Abr. 48 ; *Townshend*v. *Stangroom,*6 Ves. 404 ; *Thresh*v. *Rake,*1 Esp R. 53 ; *Dearborn*v. *Cross,*7 Cowen, 48 ; *Le Fevre*v. *Le Fevre,*4 Serg. & Rawle, 241 ; *Ballard*v. *Walker,*3 Johns. Cas. 60 ; 3 Stark. Ev. 1048 ; Burn v. *Miller, 4*Taunt. 745.

On the point, that there was a consideration for the parol pron ise, he cited *Lattimore*v. *Harsen,*14 Johns. R. 330; *Doty*v. *Wilson,*ibid. 378 ; *Oatfield*v. *Waring,*ibid. 188 ; *Hicks*v. *Burhans,*10 Johns. R. 243.

*

Atan early day of the term, *Gardiner*moved the Court for an order to take the deposition of one Alley, who had testified at the trial, in order to amend the report of the judge ; to which *Ward*objected. The *chief justice*said, that as the judge had taken minutes of the witness’s testimony, he did not think the deposition could be taken without the assent of the other party, and that if the judge had mistaken the evidence, the affidavit of the witness might be taken as the foundation for a distinct motion for a new trial. And *Putnam*J. said this course had sometimes been pursued. So the motion was not allowed.

Per *Curiam.*

The verdict of the jury has established the fact, if the evidence was legally sufficient, that the defendant, together with Payne, made the promise declared on. The defence set up was, that the work was done and the materials were furnished on a special contract under seal, made by the defendant and Payne on behalf of themselves and other subscribers to the hotel ; and such a contract was produced in evidence. The main question is, whether, there being this contract under seal, for a stipulated sum, an action lies on a general assumpsit for the amount which the building actually cost; which is more than the sum specified in the contract. It is said on the part of the plaintiff, that having made a losing bargain, and being unwilling and unable to go on with the work, Perkins and Payne assured him that he should not suffer ; and that the work was carried on and finished upon their engagement and promise that he should have a reasonable compensation, without regard to the special contract. This engagement is to be considered as proved, if by law it was admissible to show a waiver of a special contract.

It is objected, that as the evidence was parol, it is insufficient in law to defeat or avoid the special contract; and many authorities have been cited, to show that a sealed contract cannot be avoided or waived but by an instrument of a like nature ; or generally, that a contract under seal cannot be avoided or altered or explained by parol evidence. That this is the general doctrine of the law cannot be disputed. It seems to have emanated from the common maxim, *unumquodque dissolvitur eo ligamine quo ligatur.*But like other maxims, this has received qualifications, and indeed was never true to the letter, for at all times, a bond, covenant or other sealed instrument *308might be defeated by parol evidence of payment, accord and. satisfaction, &c.

It is a general principle, that where there is an agreement in writing, it merges all previous conversations and parol agreements ; but there are many cases in which a-new parol contract has been admitted to be proved. And though when the suit is upon the written contract itself, it has been held that parol evidence should not be received, yet when the suit has been brought on the ground of a new subsequent agreement not ;n writing, parol evidence has been admitted.

In *Ratcliff*v. Pemberton, 1 Esp. R. 35, Lord *Kenyon*decided, that to an action of covenant on a charter-party, for the demurrage which was stipulated in it, the defendant might plead that the covenantee, who was the master and owner of the ship, verbally permitted the delay, and agreed not to exact any demurrage, but waived all claim to it. He laid down a similar rule in *Thresh*v. Rake, ibid. 53; where however the contract does not appear to have been under seal.

In *2*T. R. 483, there were articles of partnership, containing a covenant to account at certain times ; and upon a balance being struck, the defendant promised to pay the amount of the balance; and it was held that assumpsit would lie upon this promise.

The case of *Lattimore et al.*v. Harsen, 14 Johns. R. 330, comes nearer the case at bar. There the plaintiffs had agreed to perform certain work for a stipulated sum of money, under a penalty. After they had entered upon the performance of it, they determined to leave off, and the defendant, by parol, released them from their covenant, and promised them, if they would complete the work he would pay them by the day. The court held, that if the plaintiffs chose to incur the penalty, they had a right to do so, and that the new contract was binding on the defendant.

In *Dearborn*v. Cross, 7 Cowen, 48, it is held, that a bona or other specialty may be discharged or released by a parol agreement between the parties, especially where the parol agreement is executed ; and the case of *Lattimore*v. Harsen, is there cited and relied on.

There are other decisions of like nature in the same court *309as *Fleming*v. Gilbert, 3 Johns. R. 358 ; *Keating*v. Price, 1 Johns. Cas. 22 ; *Edwin*v. *Saunders,*1 Co wen, 250. In *Ballard*v. Walker, 3 Johns. Cas. 64, it was held that the lapse of time between the making of the contract and the attempt to enforce it, was a waiver ; which is going further than is necessary in the case before us, for here there is an express waiver.

In *Le Fevre*v. *Le*Fevre, 4 Serg. & Rawle, 241, parol evidence was admitted to prove an alteration of the course of an aqueduct established by deed. In regard to the objection, that this evidence was in direct contradiction to the deed, *Duncan*J. remarks, that “ the evidence was not offered for that purpose, but to show a'substitution of another spot. If this had not been carried into effect, the evidence would not have been admissible ; but where the situation of the parties is altered, by acting upon the new agreement, the evidence is proper; for a party may be admitted to prove by parol evidence, that after signing a written agreement, the parties made a verbal agreement, varying the former, provided their variations have been acted upon, and the original agreement can no longer be enforced without fraud on one party.”

The distinction taken in the argument, between contracts in writing merely and contracts under seal, appears by these authorities not to be important as it respects the point under consideration, and justice required in the present case, that the parol evidence should be received.1

It was said that the promise of Payne cannot affect Perkins, and *vice versa.*But as they were joint actors, and as when one acted in the absence of the other, it was always with a joint view to the same object, they cannot be separated, but must be considered as joint promisors.

The parol promise, it is contended, was without considera*310tion.2 This depends entirely on the question, whether the first contract was waived. The plaintiff having refused to perform that contract, as he might do, subjecting himself to such damages as the other parties might show they were entitled to recover, he afterward went on upon the faith of the new promise and finished the work. This was a sufficient consideration. If Payne and Perkins were willing to accept his relinquishment of the old contract and proceed on a new agreement, the law, we think, would not prevent it.

*Motion for new trial overruled.*

1

 See *Bond*v. *Jackson,*Cooke, 500 ; *Sinard*v. *Patterson,*3 Blackf. 353; *Grafton Bank*v. *Woodward,*5 N. Hamp. R. 99; *Bailey*v. *Johnson,*9 Cowen, 115; *Cox*v. *Bennet,*1 Green, 167; *Watkins*v. *Hodges,*6 Harr. & Johns. 38; *Blood*v. *Goodrich,*9 Wendell, 68; *Youqua*v. *Nixon,*1 Peters’s C. C.R. 221; *Delacroix*v. *Bulkley,*13 Wendell, 71; *Mill-Dam Foundry*v. *Hovey,*21 Pick. 417. The altering a written contract by parol makes it all parol. *Vicary*v. *Moore*2 Watts, 451.

2

 See Chitty on Contr (4th Am. ed.) 430.