delivered the opinion of the court,
Upon its face, the instrument executed by these' parties on the 13th of September 1843, created two separate and independent contracts. The ice-pond lot was sold for $2500, in two stipulated payments. The consideration for the coal property was to he the payment at the end of each year of half a cent per bushel for all the coal dug and delivered, the purchaser, the defendant below, agreeing to use $1000 worth of coal each year at the specified price. On the trial the ground was taken on the part of the defence, that while the agreement was separable and divisible in its provisions, yet in fact, in view of the understanding of the parties, it was an entire contract, and was induced by a single substantial consideration. Evidence was given to prove that the motive of the defendant was to obtain the title to the ice-pond lot for the erection of an oil refinery; that he did not want the coal lot, and under no circumstances would have purchased it by itself, hut was compelled to take it, as the plaintiff insisted on selling both properties together; and that the subjects-matter of the agreement were treated as an entirety throughout the negotiations. It was shown also that one Tarr was in possession of the ice-pond property when the contracts were *92made, and was not dispossessed until December 1874, two months after this suit was brought. In the charge of the court, the jury were instructed that the evidence had been'improperly received, and should be disregarded"; that the rights of the parties were governed by the agreement; and that as a matter of law no defence had been shown to plaintiff’s claim.
In the absence of any proof of explanatory facts, when property is sold by a single contract in separate lots, and a title to a portion of them fails, equity will compel the purchasers to take the lots to which title can be made: 1 Sugden on Vendors 291. Thus, in Poole v. Shergold, 1 Cox 273, a man became the purchaser of several lots of an estate, the title to two of which failed. Upon the master’s report Lord Kenyon said he must take it for granted that these two lots were not complicated with- the others, so as to entitle the purchaser to resist the whole, and therefore decreed specific performance pro tanto. But it was said in the same case, that if a title cannot be made to a lot which is complicated with the rest, the purchaser will not be compelled to accept the rest. And Lord Kenyon said that if a purchase was made of a mansion house in one lot, and of farms, &c., in others, and no title could be made to the mansion house, it would be -a ground to rescind the whole contract. In a previous case, before Sir Thomas Sewell, Master of the Rolls, a man who had contracted for the purchase of a house and wharf was compelled to take the house, although he could not get the wharf, and although it appeared that his object was to carry on his business at the wharf. This was declared by Lord Kenyon to be a determination contrary to all justice and reason;, and in a note to 1 Sugden on Vendors 294, it is stated that “ this case has been frequently disapproved, and would not have been so decided at this day.” In Stoddart v. Smith, 5 Binney 355, it was said by Tilghman, C. J., that “ there are cases where failure to part ought to dissolve the whole contract. * * * The principle is this, that where the part lost appears to be so essential to the residue that it cannot be reasonably supposed the purchase would have been made without it, the contract is dissolved in toto.” In that case the contract was enforced as to the residue for which title could be made, but the reasons given were, that the five lots lost were not adjoining or particularly connected with the others ; and that “ there was no evidence of their being in any way essential to the use or full enjoyment of the residue.” In Freetly v. Barnhart, 1 P. F. Smith 279, which was a bill in equity to enforce the specific execution of a contract, the plaintiff had agreed to sell to the defendant three leases of land in West Virginia, in consideration for which the defendant was to convey to the plaintiff eight acres of land in Venango county, Pennsylvania, and become a member of the Cunningham Oil Company. On the hearing there was evidence of the invalidity of at least one of the leases. It was *93held that “ the lease of the Dill and tract was clearly defective to the extent of one-third, the party entitled to that being non compos mentis when it was made. This, of itself, would justify a refusal to decree in such a case as this.” The action here is in affirmance of the contract, and Nicol v. Carr, 11 Casey 381, shows it to be subject to the rule that would apply to a bill for specific performance. So far as the evidence indicates the use to which the coal property was to be devoted, it would appear that fuel was to be obtained from it for the purposes of the- oil refinery on-the ice-pond lot, which it was the design of the defendant to erect. How the properties were tobe connected, and how and to what extent the enjoyment of the one was dependent on the possession of the other, .the jury alone could have determined.
In support of the ruling of the court below, the counsel for the plaintiff have relied in their argument on the doctrine asserted in 2 Parsons on Contracts 29-31, that “if the part to be performed by one party consists of several and distinct items, and the price to be paid by the other is apportioned to each item to be performed, or is left to be implied by law, such a contract will generally be held to be severable. * * * But if the consideration to be paid is single and entire, the contract must be held to be entire, although the subject of the contract may consist of several distinct and wholly independent items.” The doctrine is stated with sufficient accuracy to meet a case ivhose particular circumstances warrant its adoption, but the defect of the statement, as quoted by counsel, consists in its universality. While the reduction to the limits of a maxim of the great body of principles that make up an entire branch of our legal system, might be convenient, it would be exceedingly unsafe. McClurg v. Price, 9 P. F. Smith 420, was cited as an instance where this rule was adopted without qualification. All that was done there was to settle the law that bore on the facts which the case presented. It was not designed to unsettle or disturb the authority of Obermyer v. Nichols, 6 Binney 159, and of other well considered precedents, containing such elements as proof of substantial but defective performance, proof of a failure to perform capable of compensation in damages, or proof of other peculiar facts requiring the application of peculiar principles. The Lucesco Oil Company v. Brewer, 16 P. F. Smith 351, was also cited. The contract there was manifestly severable, and was within the general doctrine of Parsons on Contracts. In neither McClurg v. Price, nor the Oil Co. v. Brewer, were there any circumstances proved to show such relations of parties, such situation of property, or the existence of such exceptional conditions as to require the intervention of a jury to promote an equity, or avert an injustice, or prevent a fraud.
The parol evidence was competent, and was properly received by the court. It was said in Barnhart v. Riddle, 5 Casey 92, *94“ that many cases might be cited from the books to mark the distinction, too often lost sight of by counsel, in the zeal of an argument, between evidence to alter the language of a written instrument and evidence to define the position of the parties, and the nature and condition of the subject of the contract. So long as parties call on courts of justice to administer their contracts, they must expect them to be administered as nearly as may be according to the very intention and understanding that were present in the minds of the parties when the contract was signed, and to this end courts take the language employed, and apply it to the surrounding circumstances exactly as they believe the parties applied it:” Miller v. Fichthorn, 7 Casey 252, is an authority to the same general effect. In Pennsylvania, in the words of Lowrie, C. J., “in consequence of our liberal allowance of set-offs, defalcations and equitable defences, parol evidence is often admissible in an action on a written contract, in order to extend the field of inquiry to the whole transaction of which the particular contract forming the basis of the action constitutes a part.” In an action on a contract for the sale of a colliery for a gross sum of money, to be paid at a certain rate per ton on each ton of coal mined therefrom, parol evidence is admissible to prove that at the time of the execution of the contract, it was agreed between the parties that the vendors should not be bound to mine the necessary amount of coal, and that the vendee should take the risk of their doing so: Chalfant v. Williams, 11 Casey 212. The English rule that parol evidence is inadmissible to vary the legal operation of an instrument is not the law of this state: Id. A verbal promise by one of the parties at the making of a written contract, if it was used to obtain the-execution of the writing, may be given in evidence. “This rule is put upon the ground that the attempt afterwards to take advantage of the omission from the contract of such promise is a fraud upon the party who was induced to execute it upon such promise:” Per Gordon, J., in Powelton Coal Company v. McShain, 25 P. F. Smith 238. Having been received, the evidence should not have been withdrawn. It had a legitimate bearing on the questions which the defendants had legitimately raised. With the other proofs it should have been submitted to the jury.
The fourth error is assigned to the failure of the court to charge that the plaintiff could not maintain this action without a previous tender of a deed for the coal property. While the property included three acres of surface, it seems obvious from the whole-agreement, in the absence of explanatory testimony, that the parties treated it not as land but a mining right. The only consideration to be paid was half a cent per bushel for the coal that should be dug and delivered. No date was specified for the execution of the deed for even the ice-pond lot. For that, $2000 were to be paid “ on the execution of the deeds and possession of the *95property.” The contract contained no provision to secure the consideration for the coal lot. With such knowledge of the facts as the record affords, the failure to tender a deed cannot be held fatal to the plaintiff’s action. Such a deed in the ordinary form would scarcely meet the exigencies of a contract which partakes more of the nature of a mining lease than of a sale of land. The difficulties in the way of a conveyance do not appear insurmountable. The property could be made subject to the consideration in the very words the parties employed, although, in the absence of stipulations, this could only be done by a fresh agreement, or by the terms of a conditional verdict.
Judgment reversed, and a venire facias de novo awarded.