delivered the opinion of the court, October 5th 1874.
The record shows no fact of which to predicate the first assignment of error. It must therefore be disregarded.
The second assignment is to the rejection of the evidence covered by the bill of exceptions. The evidence was offered as a whole, and rejected as a whole. Hence if any part of it was inadmissible, there was no error in rejecting the whole: Sennett v. Johnston, 9 Barr 335. It is sometimes a little difficult to determine whether parol evidence should be received to contradict or vary the terms of a written instrument. It may be modified by parol evidence of what passed between the parties at the time of its execution, in cases of fraud, mistake or trust. Without proof or allegation of fraud, it has frequently been held that such evidence is not admissible to change or contradict the terms of a promissory note: Hoare et al. v. Graham, 3 Camp. 56; Moseley, Assignee, v. Hanford, 10 B. & C. 729; Free v. Hawkins, 8 Taunt. 92; Hill v. Gaw, 4 Barr 493; Anspach v. Bast, 2 P. F. Smith 356.
In the absence of fraud, the first part of the offer is in conflict with these cases; but the latter part is more clearly inadmissible. It involves an inquiry into many and complicated partnership transactions. That this cannot be done in this form of action is well settled: Sennett v. Johnston, supra; Russell v. Miller, 4 P. F. Smith 164. The learned judge was entirely correct in rejecting the evidence. We see no error in the record; therefore,
Judgment affirmed.
Mr. Justice Sharswood dissented.