The county court, in excluding the testimony of Jackson, as to the conversation of defendant, had in August, 1843, as well as in its charge to the jury, “ that if they believed all the evidence, they could not find for the plaintiff,” acted, doubtless, under the supposition that the plaintiff had misconceived the form of action appropriate to his relief. It is certainly true, that the plaintiff was proceeding to recover for breach of defendant’s contract, or for the fraud or deceit practiced upon him by Philips, in representing the land as containing 240 acres, when he knew it did not, he could not recover in assumpsit, but must either resort to covenant on his bond, or deed, or to his action of case, for the tort. Such was the decision in Morgan v. Patrick & Smith, 7 Ala. Rep. 185. But it does not follow, that because the vendor may have made false and fraudulent representations as to the quantity' of the land which he has sold, and for which fraud an action of deceit would have lain, that he may not afterwards make a promise or contract, based upon such representations as will sustain assumpsit. The deceit which he has practiced to the injury of the vendee, furnishes a strong moral, as well as legal obligation to make restitution. The plaintiff could not recover in the form of action here resorted to, for the fraud, but if, as he contended, and as the evidence conduces to show, the defendant after-wards agreed, if the plaintiff would go on and take possession, and the land, upon an actual survey should fall short of 240 acres, he would makegood, by payment, any deficiency, the action of assumpsit would lie to recover for a breach of this contract, and the plaintiff would be allowed to prove the representations of the vendor at the time of the sale, as inducement to the contract, and as establishing its considera*567tion. The action of assumpsit is maintainable, wherever there is an express contract not under seal, to pay money, or perform a duty, or where one can be implied from the circumstances in proof. Chit. Pl. 93.
As a genera] rule, it is too well established to admit of any doubt, that all parol negotiations between the parties to a written contract, anterior to, or contemporaneous with, the execution of the instrument, are to be considered as merged in the written agreement, but the rule is not to be extended so as to embrace agreements subsequently entered into. See Brewster v. Countryman, 12 Wend. 446; Richardson v. Hooper, 13 Pick. Rep. 446; Le Fevre v. Le Fevre, 4 Serg. & R. 241; Munroe v. Perkins, 9 Pick. 298; Fleming v. Gilbert, 3 Johns. Rep. 528. Nor does it extend to collateral and independent facts, about which the writing is silent. Gerrick v. Washburn, 9 Pick. Rep. 338; Hall v. McCubbin, 6 Gill. & Johns. 107.
The proof conduced to show, that notwithstanding the plaintiff accepted a bond, and afterwards a deed of conveyance for the land, describing the quantity as 240 acres, “more or less,” that there was a contract subsisting between the parties, at a time subsequent to the execution of the conveyance, to pay for the deficit in the quantity of acres. And the proof offered, and rejected by the court, further conduces to establish the fact, that the plaintiff, in consideration of this subsequent agreement, was induced to take possession of the land. True, the conversation proposed to be detailed by the witness, had after the consummation of the purchase, is by no means conclusive, but it is relevant, and could not therefore be properly rejected.
The charge asked by the plaintiff, “ that if the jury believed the plaintiff purchased from the defendant a lot of land in Georgia, and took from him a bond for title, conditioned to convey 240 acres, more or less, and afterwards, and before the plaintiff took possession, he ascertained there was a deficiency in the quantity, and complained to defendant, and that the defendant thereupon insisted said tract did contain 240 acres, but told plaintiff to go and take possession of the land, and that they would measure it, and he would pay for any deficiency, and there was a deficiency, they should find *568for the plaintiff,” we think was properly refused by the court. The contract stated in the charge, proposes that the land should be measured by the parties, and that the plaintiff should take possession of it, whereas it seeks a recovery without any affirmance by the jury of either of these facts. Besides, there is no count on such a contract in the declaration, and as the charge assumes it as executory merely, and not executed, the plaintiff was not entitled to recover under the declaration. See Dukes v. Lowie, at the last term.
For the error we have noticed in excluding the testimony offered, which, as we have seen, conduced to prove an executed contract, upon which the plaintiff, under the common counts can recover, if he can sufficiently prove it, the judgment of the county court must be reversed, and the cause remanded.