The plaintiffs entered into negotiations with the defendant whereby he was to sell them certain boats, canoes, sails, oars, paddles, furniture and other fittings then stored at Winter Harbor. Two or three interviews were had in Boston, the defendant’s place of residence, before the bargain was struck'.
It became a question of fact at the trial what the contract was,— whether the bill of sale which the defendant gave to the plaintiffs embraced the whole contract between the parties, or whether there was a collateral agreement incidentally connected with the stipulations contained in the bill of sale and not m conflict therewith.
This was important as bearing upon the question of admissibility of evidence which was admitted, and to the admission of which exceptions were taken by the defendant. If the whole agreement in reference to the sale of the property was embraced in that bill of sale, theu no parol evidence was admissible to contradict, vary or modify the contract which the parties had thus reduced to writing. But if the original contract was verbal and entire, and a part only of it was reduced to writing and embraced in the bill of sale, it was competent to show that fact, or that there was a distinct collateral agreement, not inconsistent with the terms of the written stipulations of the parties, and which constituted in part the consideration of the written agreement, or operated as an inducement for entering into it. Bonney v. Morrill, 57 Maine, 368, 373, and cases cited. See Grant v. Frost, 80 Maine, 202; Bradstreet v. Rich, 72 Maine, 233, 237, and cases cited. Brown on Parol Evidence, ch. xii, § 50, and cases cited. Stephen Evidence, Art. 90. Taylor Ev. § 1038.
The property in relation to which the contract was made had been stored the fall before at Winter Harbor. The plaintiffs claim that the defendant agreed to sell all the articles that were stored in the fall. On the other hand the defendant contends that the bargain was that he was to sell the plaintiffs what was at Winter Harbor on May 16th, the time when the contract was entered into, with no right to anything that might be missing from the articles stored the fall before.
*83The bill of sale contains no particular enumeration of the articles sold, the language being, "All the boats, canoes, sails,, oars, paddles, fittings and fixtures of every kind, more or less,. as the same now lie at Winter Harbor,” &c. The plaintiffs” contention at the trial was that there was an oral promise,, warranty or understanding on the part of the defendant to the-effect that all the boats, etc., put into the boat-house at Winter-Harbor by Neal, one of the plaintiffs, were there at the time off the execution and delivery of the bill of sale.
If such a promise or agreement was in fact made, were the-plaintiff’s entitled to the benefit of it under the rules of evidence ? We think they were.
The contract or promise relied on was a collateral agreement incidentally connected with that which had been reduced to writing, and not inconsistent with it. The bill of sale was silent as to quantity. The words " as they now lie ” refer to quality or condition rather than quantity and number. No part of the writing covered this collateral stipulation set up by the plaintiffs. Consequently evidence of it was admissible, and it was for the jury to determine whether it was proved or not. Farwell v. Tillson, 76 Maine, 227, 239.
The general rule is that parol evidence cannot be received to conti’adict or vary the terms of a written contract, and that when an agreement is reduced to writing it must be considered, as expressing the ultimate intention of the parties to it, and therefore, in the absence of fraud, (Prentiss v. Russ, 16 Maine, 30,) parol evidence is not to be admitted to alter or modify the terms or legal effect of it. The parties having reduced their contract to writing, their rights must be governed by and depend upon its terms as therein expressed, irrespective of parol evidence of what was intended, or what took place previous to or at the time of making the contract.
But there are exceptions to this general rule which permit parol evidence of engagements collateral to, or independent of, the provisions expressed in the written agreement and not within its terms, although made at the same time and affecting the rights of the parties in relation to the subject matter of the writing. In such it is deemed only partially reduced to writing, and the *84collateral undertaking or stipulation exists in parol. Chapin v. Dobson, 78 N. Y. 74; Potter v. Hopkins, 25 Wend. 417; Lindley v. Lacy, 17 C. B. (N. S.) 578 (112 E. C. L. 578); Jeffery v. Walton, 1 Starkie, 267 (2 E. C. L. 108); Willis v. Hulbert, 117 Mass. 151; Nickerson v. Saunders, 36 Maine, 413; Goodspeed v. Fuller, 46 Maine, 144; Bradstreet v. Rich, supra. In Dorr v. Fisher, 1 Cush. 271, 273, Chief Justice Shaw uses this language: "But a warranty is a separate, independent, collateral stipulation, on the part of the vendor, with the vendee, for which the sale is the consideration, for the existence or truth of some fact, relating to the thing sold.” Benj. on Sales, § 610. .
Green!eaf thus expresses the exception to the rule: "Nor does the rule apply in cases where the original contract was verbal and entire, and apart only of it was reduced to writing.” 1 Gr. Ev. § 284 a. And this court in Bonney v. Morrill, 57 Maine, 373, states it thus : "There is no rule of evidence which precludes the defendant from asserting and proving by oral testimony, any distinct and valid parol contract of the plaintiff, made at the same time and not reduced to writing, which is not in conflict with the written agreement and which undoubtedly operated as an inducement to the defendant to enter into it.”
The exception to the admission of the testimony of Charles H. Wood cannot be sustained for the reasons already stated,— (1) It related to the alleged collateral agreement relied on by the plaintiffs ; (2) To a conversation between the defendant and one of the plaintiffs which was first partially drawn out by defendant’s counsel upon cross-examination of Neal. By the introduction of a portion of such conversation, although upon cross-examination, the other party had a right to the whole of it, and to prove what in fact the conversation was. Williams v. Gilman, 71 Maine, 21; Oakland Ice Co. v. Maxcy, 74 Maine, 294; Mowry v. Smith, 9 Allen, 67, 68.
The exception in relation to the requested instruction is not insisted upon. It was given as asked for with qualifications that were proper to prevent the jury from being misled as to the issue involved.
*85After a careful examination of the evidence we perceive no reason why the verdict should be disturbed upon the motion for a new trial. While it was more or less conflicting upon the vital points in controversy, it was sufficient upon which to found a verdict.
Exceptions and motion overruled.