The opinion of the Court was delivered by
Kennedy, J.The several errors assigned in this court, founded on the exceptions taken to the opinion of the court below, may all be disposed of by deciding the question whether the parol agreement alleged by the plaintiff below to have been made subsequently to the execution of the bond, can be considered as being incorporated into and forming a part of the condition thereunder written. For if it cannot, then the evidence mentioned in the first bill of exception offered by the counsel of the plaintiff, and admitted by the court, for the purpose of proving the pai’ol agreement, was clearly inadmissible, and ought not to have been received. And, consequently, the evidence mentioned in the second bill of exception ought not to have been received either, as it was admitted for the purpose of proving the whole quantity of boards and other materials, which, it was alleged, the defendants below had gotten, as well under the written agreement referred to in the condition of the bond as the parol agreement, without proposing to distinguish or show how much was obtained separately under either of the agreements. In a suit, however, against Isaac Ferris for a breach of the subsequent parol agreement, which, from the evidence given, it would seem he, in conjunction with Newton Smith, and perhaps with John Malone and John Dale, but not with Samuel Ferris, as it appears to me, made with the plaintiff below, the evidence mentioned in the second bill of exception, though of a very vague and uncertain character, would have been admissible as to the quantity of lumber, which the timber growing on the west side of the road would have made, because Isaac, if the evidence be true, not only kept no account himself of the timber brought to Mott’s mill and sawed from that side of the road, but actually destroyed one which his sawyer had commenced keeping, and forbade him to keep any. Although the bond in this case and the judgment entered upon it, in favour of the plaintiff below, against the defendants, was for a certain sum of money, yet from the terms of its condition it was pex-fectly uncertain what the amount would be, which the defendants would ultimately become liable to pay under it. In order, therefox-e, to ascertain the sum of money which the defendants, according to the tenor of the bond and its condition, had rendered themselves liable to pay to the plaintiff, it became necessary to *51sue out upon the judgment, the writ of scire facias, which is now before us. The writ of scire facias does not set out the condition of the bond and show how much lumber belonging to the plaintiff was received and taken by the defendants under it; nor does any declaration appear to have been filed by the plaintiff below for the like purpose. But notwithstanding this has been omitted, we are to look at the case and pass upon it as if a declaration had been filed by the plaintiff, reciting the condition of the bond upon which the judgment was entered, stating the amount" of the lumber received by the defendants under it, and showing their liability to pay for the same according to the tenor and effect of the condition. If the plaintiff, in drawing his declaration, had recited the condition, as it was written at the time of the execution of the bond, it is quite clear, I apprehend, that he could not have claimed to charge the defendants with lumber gotten by them under the subsequent parol agreement, to which the condition of the bond has no reference whatever, and indeed could not possibly have, as it was not in existence at the time of the execution of the bond, nor even thought of by them. The rule that the allegata and probata must agree, would have precluded the admission of evidence to establish such a charge. But suppose, in order to avoid the operation of this rule, the plaintiff had introduced into his declaration the parol agreement as having been made a part of the condition of the bond, by a subsequent parol agreement entered into for that purpose between the parties. This would have militated against another rule, that an agreement cannot be partly in writing under seal of the parties and partly in parol. A subsequent parol agreement cannot be tacked to a prior agreement under seal, between the same parties, so as to make the two agreements one entire agreement under seal. But a prior agreement under seal may be referred to by a subsequent parol agreement, and made a part of it, so that both shall form but one entire parol agreement. This doctrine was recognised in Vicary v. Moore, (2 Watts 451), and ruled that case in favour of the plaintiff in error, by reversing the judgment rendered against him, as the defendant in the court below, which the plaintiff there recovered in an action of covenant for the breach of an agreement, made first in writing between the parties under their hands and seals, but subsequently altered in some respects by a parol agreement. The bond and the judgment entered upon it in this case, were given for the purpose of securing to the plaintiff the payment of the price of all the lumber which he had or should thereafter have at the saw-mill of Samuel Ferris, one of the defendants, under an agreement in writing therein referred to, all which lumber the plaintiff had sold to the defendants at the price mentioned in the condition of the bond, to be taken by them at said saw-mill. This is certainly and clearly all the lumber that is embraced within the condition of the bond; and it is equally *52certain, that the bond or its condition contains no provision, that any other lumber than thatwhich had or should be sawed at Perris’s mill for the plaintiff under the agreement therein mentioned should by any future agreement of the parties be superadded. Without some such provision at least, I apprehend, that the bond could never be considered as forfeited by reason of the non-performance of a subsequent parol agreement, that the condition of it should extend to lumber which the plaintiff had at the time of making such subsequent parol agreement, or might thereafter have sawed at Mott’s saw-mill under a different agreement from that mentioned in the condition of the bond, and to be taken by the defendants as purchasers of it at this last mill instead of Ferris’s mill. If a mortgage had been given in this case instead of the judgment bond, it would scarcely be pretended, as it appears to me, that it could, by a subsequent parol agreement made between the parties, be extended so as to cover and secure the payment of other lumber than that mentioned in the mortgage; yet there seems to be no reason for making a distinction between the two cases. For I take it to be the settled rule upon this subject, that no money can be recovered under the penalty of a bond, or a judgment obtained for the penalty of it, excepting it be assessed or allowed as damages or a compensation on account of a breach of the condition as it is written. The penalty is only considered a security for the payment of whatever loss or damage may actually arise and accrue to the obligee, from the non-performance or nonobservance, by the obligor, of something clearly mentioned or referred to in the condition; and not for loss or damage growing out of subsequent agreements or transactions between the parties, to which they could have had no possible reference, as they did not exist either in fact or in the contemplation of the parties at the time. We therefore think that the court below erred in admitting evidence for the purpose of establishing the subsequent parol agreement; and in directing the jury that such agreement, if proved, came fairly within the condition of the bond, or, at least, was not such a material alteration of the agreement mentioned and referred to in the condition of the bond, as would preclude the defendants from being liable to pay for all the lumber and shingles obtained under it, and from being liable to an execution to be awarded against them for the amount thereof, whatever the jury should find.it to be, in the scire facias upon the judgment.
Judgment reversed, and a venire facias de novo awarded.