CASE 13 — PETITION ORDINARY

— JUNE 27.

#### Metcalfe’s Executrix vs. Poindexter’s Executrix.

APPEAL PROM JEFFERSON CIRCUIT COURT.

1. An instrument in writing recites that “for the *satisfaction*and *security*of J. M." it proceeds to *“restate”*a subsisting parol agreement or understanding, the substance •iof which is set forth in tho instrument. Held, that the writing is a covenant, binding as such on the parties, and not a mere *memorandum*of the prior parol agree-binent.

2. All written contracts are, in a certain sense, but *restatements*of a pre-existing ..parol agreement between the parties. And the more fact that the written memorial ■ contains such a recital, cannot operate so to change the character and legal effect of «the instrument as to reduce it from the grade and dignity of a covenant.

Metcalfe’s executrix sued Poindexter’s executrix upon the fol-ilowing instrument, as a covenant:

*51c f Tj n t t t «y r r/r. p. Tnnp 9th.? IS^T.

“For the satisfaction and security of Joseph Metcalfe, in relation to repairs done on the Oakland property, of which he is the proprietor under lease from me, I hereby restate what has been the understanding since the volunteer militia, mustered into the United States service, who were encamped on said property, under contract with the Quarter Master of the troops so encamped, that all such repairs as have been done under the superintendence of said Metcalfe, (since the removal of said troops, in order to restore the property to the like condition in which it was before said encampment,) shall be a charge on such repairs and improvements as may have been made under the superintendence of said Metcalfe, on' the amount which the Government of the United States may allow (under the contract aforesaid, for the encampment of said troops,) and the damages consequent thereon, to be paid to said Metcalfe so soon as the same is allowed and paid by the government, to the extent of his expenditures in making, said repairs.

“Teste : Geo. Hancock.” GEO. POINDEXTER.”

The pi an tiff sought to recover $1,137 91, which it was alleged Metcalfe had expended in making said-repairs, and averring that the government of the United States had paid to Poindexter $1,500, for the encampment of said troops and the damages consequent thereon. More than five years had elasped after the cause of action accrued before this suit was brought. The defendant pleaded the statute of limitations. The plaintiff demurred to the answer. The demurrer was overruled. Judgment was given for the defendant, and the plaintiff prosecutes this appeal.

T. A. Marshall, for appellant,

cited 1 *Digest Ky. Rep.,page*386; 2 *Bibb,*614; 3 *A. K. Mar.,*284; 2 *Bibb,*465; 4 *Mon.*462; 1 *A. K. Mar.,*475; 3 *Mon.,*22.

S. S. Bush, on same side,

cited 1 *Mar.*314; 3 *Dana,*483; 1 *J. J. Mar.,*411; 11 *B. Mon.,*312; 2 /. *J. Mar.,*129; 2 *Cowen,*195; 8 *Mass.,*214; 10 *lb.,*379; 11 *lb.,*302; 11 *Pick.,*154; 4 *Dal.,*345; 2 *Skepley,*233; 19 *Maine,*394; 11 *Vermont,*493; *Chitty on Contracts, pages*74, 97, 84.

*52W. S'. Bodley and P. B. Poindexter, for appellee,

cited 13 *B. Mon.,*475; 1 *Mar., 422; 12 B. Mon.,*470; 5 *J. J. Mar.,*32; 11 *B. Mon.,*312; *Angelí on Limitation, sec.*92, *and notes;*2 *Bacon's Abr.*558. *Covenant. B.*

JUD0E DUVALL

deliyeeed the opinion op the doubt:

We are of opinion that the writing on which the present action is founded is a covenant, and was so intended by both the parties.

There had been a parol agreement, (or understanding,) between Poindexter and Metcalfe, in relation to certain repairs done by the latter on the Oakland property. That agreement not having been altered or satisfied, subsisted at the time of the execution of the writing. It existed in parol merely, but was in full force, and was obligatory between the parties. For the purposes declared in the writing — that is to say, “for .the *satisfaction*and *security*of Joseph Metcalfe” — Poindexter proceeds to “restate” in writing the pre-existing parol agreement or understanding, the substance of which was, as set forth in the instrument, that the repairs on the property which had been made or superintended by Metcalfe, should be a charge on the amount which the government might allow, under the contract as recited, and the damages resulting from the occupation of the property by the troops, “to be paid to said Metcalfe so soon as the same is allowed and paid by the Government.”

Such are, substantially, the terms and stipulations of the contract as set forth or *restated*in the instrument sued on. The object of making this written re-statement appears on the face of the instrument, and is forcibly, indeed we might say, conclusively illustrative of the motives and , intentions of the parties in its execution. That object was “.the *satisfaction*and security of Joseph Metcalfe.” Now it occurs to us, that in view of all the circumstances surrounding the parties at the time, the execution of the writing would have afforded Met-calfe very little *satisfaction,*and no *security*at all, except on the assumption that it was intended to merge the subsisting parol agreement into the written covenant. All written contracts *53are, in a certain sense, but re-statements of a pre-existing parol agreement between the parties. And +bo mere fact that the written memorial contains such a recital, cannot operate so to change the character and legal effect of the instrument as-to reduce it from the grade and dignity of a covenant to a mere *memorandum*of the prior agreement.

We think it clear, on the face of the writing itself, that it was delivered on the one hand, and accepted on the other, as a covenant binding as such on the parties.

This view of it is sustained by ample authority. (2 *Bibb,*614; 3 *A. K. Marshall;*4 *Mon.,*402; 1 A. *K. Marshall,*475; 3 *Mon.,*22.)

It will be found, upon an examination of the cases relied on by the appellee, that they do not conflict with the principle settled in the cases above referred to.

The judgment is reversed, and the cause remanded with directions to sustain the demurrer to the plea of the statute of limitations, and for a new trial and further proceedings notin-consistent with this opinion.