The defendant, in support of her motion for a new trial, relies on the principle of law, that when the parties to a contract have reduced it to writing, the writing shall be presumed to contain the whole contract between them: Not only so, but that all previous and contemporaneous declarations and negotiations relating to it, shall be deemed to have been waived; and that the only contract between the parties is contained in the writing: And if so, then that the written contract cannot be varied, in any respect, by parol testimony. Hence the counsel for the defendant infer, that when it had been proved, that it was agreed by the parties, that one Jesse Mallary should give a bill of sale of the sloop or vessel, because the legal title was vested in him, she being a foreigner, and therefore incapable of holding such property; and that a bill of sale had been given, by Mallary, without warranty; no parol proof of a warranty by the defendant could be received. The premises are undoubtedly true; but the inference is denied. The purchase of this sloop, and the terms of payment, and the receipt of the purchase money, all were, as they well might be, by parol. The equitable owner, however, was a foreigner; and, as such, could not enjoy, or confer on another, the privileges of an American owner. She then, having agreed to sell the vessel to the plaintiff, for a stipulated sum, and having, at the time of sale, warranted her tight and sound, further agrees, that Jesse Mallary, who held her in trust for the defendant, should give a bill of sale of her, to vest the title in the plaintiff. This bill of sale was not to be given to the defendant, and then she to give a bill of sale to the plaintiffs. Had such been the contract, then, perhaps, an acceptance of the bill of sale, it containing no warranty, would have brought the contract within the principle laid down by the defendant. The case presents *14two distinct contracts, wholly disconnected in their nature, viz. one a sale and warranty of the sloop, the other an agreement to procure from the trustee a bill of sale, which should vest the plaintiffs with the rights and privileges of an American owner. The bill of sale has been given; but the contract of warranty has not been complied with; and this forms the gravamen of the plaintiffs’ declaration. In this view, as it appears to me, the whole contract between the parties is in parol. One part of it is to be performed, by procuring a written bill of sale from a person not the equitable owner, and having no equitable interest in the vessel. This part has been performed. For the non-performance of the other part this action is brought; and I think, it is sustainable by the proof. It is, in no respect, like the cases cited by the counsel for the defendant. Vandervoort & al. v. Smith, 2 Caines 155. Powell v. Edmunds, 12 East 6. Mumford & al. v. M'Pherson & al. 1 Johns. Rep. 414. Dean v. Mason, 4 Conn. Rep. 428. 432. By these cases, the universal doctrine is upheld, that a written agreement is presumed to contain the whole contract between the parties, made at the same time, and in relation to the same subject.
The motion for a new trial must be denied.
Hosmer, Ch. J., and Peters and Bissell, Js. were of the same opinion. Williams, J. having been of counsel in the cause, gave no opinion.New trial not to be granted.