The opinion of the court was delivered hy
Steele, J.No evidence is adduced in favor of the motion to recommit. The agreement to treat that motion as exceptions enables us to consider no more than what is apparent upon the face of the report. We are left to determine from the report itself, and the judgment, unaided by anything beyond, whether either the auditor or the county court have erred in matter of law.
I. Can the suit be sustained against this defendant alone? The auditor does not report facts which would have warranted the plaintiff in bringing his action against'others. It was upon the defendant’s credit alone that the plaintiff was employed. He was to open and develop a coal mine on lands in Kentucky, which were owned by the defendant with others. It does not appear that the other proprietors requested the defendant to engage in this enterprise, or authorized him to employ the plaintiff to perform this service. The mere fact that they were co-tenants with the defendant in the land, is not enough to warrant a presumption that they were partners with him in his scheme to develop a coal mine upon it.
2. Does the paper evidence prove an accord and satisfaction ? The. plaintiff’s letter of September 12th, 1853, does not, as has been suggested, leave the whole matter of payment to the defendant’s conscience, Some expressions in it, when taken apart from the rest of the letter, might be so understood, but read, as they should be, with the remaining portion of the letter, it becomes manifest that these expressions refer only to the plaintiff’s claim for his salary. The concluding passage, “ you must give me what I have been out, if I lose my *519time,” shows that he purposes or offers to submit even the matter of his salary to the defendant’s conscience, only upon condition that his account for cash paid out, $164.85, is paid. If, upon receiving this letter, the defendant had accepted the proposition, and promised to pay the $164.85, it would have been an accord. If he had paid it, it would also have been a satisfaction. He did neither, but sent the plaintiff a check for $125., which the plaintiff receipted as so much on account, and on account “ for cash and labor ” done in Kentucky. The papers do not tend to prove even an accord, much less an accord and satisfaction.
These views render the question of evidence, raised upon this branch of the case, immaterial. The auditor received parol testimony against objection by the defendant, tending to show that these letters, and the transactions they prove, were not meant or understood as an accord and satisfaction. As the auditor arrived at the same conclusion with the oral testimony to which the papers should have led him without it, it is unnecessary to decide whether such testimony was admissible.
8. Was the plaintiff’s memorandum to be treated as a written contract not open to explanation, addition or variation by parol testimony, and, as a matter oflaw, conclusive against the plaintiff upon the question of what the agreement was?
This memorandum was made without the knowledge of the defendant. It was written and signed by the plaintiff upon his private memorandum book, for his own personal use. Had the contract been reduced to writing by the parties when made, and signed by the plaintiff, and delivered to the defendant, the writing would have constituted the best evidence of the agreement, and would have come under the general rule, that written contracts are not to be varied by oral testimony. But in that case the writing would have been equally conclusive upon both parties. It would not be claimed that this memorandum, made by the plaintiff after the trade, for his own private reference, and without the defendant’s knowledge, would conclude the defendant upon any question as to what the bargain really was. It cannot, then, be upon the ground that this memorandum is a written agreement, that the plaintiff is barred from proving the con*520tract by parol, for an agreement between two parties, by which one only is concluded, is unknown to the law. Nor can it be said that the plaintiff is estopped by his memorandum, for, among other reasons, to constitute an estoppel, the defendant must have acted or ordered his conduct in reliance upon the memorandum. It is manifest that he did-not govern his conduct by a writing which he never saw or understood to exist. The memorandum, we think, was conclusive upon no one. It was no contract. At the most, it was but a piece of evidence, not admissible, in favor of the plaintiff, except when accompanied by proper parol proof, and not competent against the plaintiff in any other light than as an admission, the force of which was to be determined by proof of the circumstances under which it was made. The question for the auditor was as to what the agreement in fact was, and not what either party wrote in his memorandum book, To determine this, it was his duty to consider, among other things, the admissions of the parties, so far as proved, whether made in a letter, a conversation, or a memorandum book. It was not necessarily his duty to be governed by these admissions.
4. The defendant contends that the auditor excluded this admission from any consideration against the plaintiff, and limited its use to service as an aid to the plaintiff’s recollection. In order to justify this claim, it must appear affirmatively upon the report, that the auditor so limited its application, and we do not think the report is susceptible of such a construction. The auditor states in what way the plaintiff made use of the memorandum upon the trial. He does not state what use or weight he himself gave to it, but says, that from “ the whole evidence ” he determined what the contract was. It would be unjustifiable for the court to presume that he excluded this item of testimony from consideration upon any subject to which it was pertinent, from the mere fact that he does not state whether he considered it or not.
The result is, we find no error of law in the report of the auditor, or in the judgment of the county court upon the report, and the judgment is affirmed.