The note in suit was given at the time that the plaintiff executed the agreement of March 30, 1854, and in consideration of the plaintiff’s thereby agreeing to give up to the defendant his contracts for cloth boards with the Bay State mills at Lawrence and the Middlesex mills at Lowell, Mass.
The defendant’s evidence tended to show that there were no contracts at all between the plaintiff and the mills which the plaintiff could give up — and so a total failure of consideration and fraud.
The plaintiff offered to show by parol, that in September, 1853, he contracted with the Middlesex mills to deliver them twenty-five thousand cloth boards ; and in October, 1853, he contracted with the Bay State mills to deliver them forty thousand cloth boards by the 10th of December, 1853 ; and that although he had not performed these contracts, yet the mills were willing to receive the cloth boards of him in March, when he agreed to give up his contracts with the mills to the defendant; that the defendant must have known the situation of these contracts when he gave the note ; and various circumstances growing out of the relation of the parties to each other, and of their dealings with *219each, other and the mills, to show that the parties, by their agreement of March 30, 1854, must have referred to these contracts as those which were to be given up. Is this evidence so contradictory to the agreement of March 30, 1854, or variant from it, as to be inadmissible ?
The agreement refers to the contracts to be given up in very general terms — specifying only the mills with which they were made and the prices which the plaintiff said he was Jo get by them for cloth boards. Whether the contracts were by parol or in writing — when made — for what amounts, for what period of time, when to be performed — and any other conditions and terms which might form a part of them, are not mentioned in this agreement. It is obvious that to identify the contracts so to be given up, resort must be had to parol testimony. Any parol evidence tending to show what the contracts were which were meant, would therefore be admissible — so long as it did not conflict with the description given in the agreement. The word “ contracts” should be understood in its popular sense, as applicable to any understanding between the plaintiff and the mills by which they understood that he was to deliver, and they to receive, cloth boards, at the prices named in the agreement. The evidence of the plaintiff tended to show a contract with the mills upon which they were still willing to receive cloth boards. If upon his claim of the then existing state of these contracts, he had acted and taken cloth boards to the mill companies, it is reasonable to believe that they would have received them. Whether he could have compelled them to receive them, or not, does not appear. If there had been a forfeiture on his part which they were willing to waive upon his proceeding to perform in the future, such a state of things in regard to his contracts with them would still entitle them in ordinary language to be called contracts. We think therefore, the evidence did not show contracts so past and' abandoned as to prevent the proper use of that word in describing them ; and that the contracts still existed in a sense which might prove advantageous to the defendant, and so that he would naturally refer to them by that term even though it might be doubtful whether he could legally enforce them.
*220The phrase for the term of two years,” we do not understand as descriptive of the c nlraets to be given up, and as meaning that they are to be in force for that time for the defendant’s benefit ; but as indicating the period during which he is to retire from the furnishing of cloth boards to the mills, and give up to the defendant the privilege of furnishing them. If this construction could be deemed doubtful upon the words of the agreement — the parol evidence clearly shows that to have been the intention of the parties.
As therefore we do not find the parol evidence conflicting with or changing the sense of the written agreement, but only showing to what it was intended to apply — explaining and identifying the subject matter of it by the attending circumstances— it was admissible upon familar principles of law. It is unnecessary therefore to consider whether it was admissible upon the other grounds urged by the plaintiff.
Judgment affirmed.