The opinion of the court was delivered by
Royce, J.The first question presented by the bill of exceptions arises upon the ruling of the court, in permitting the plaintiff to prove by parol that, at the time when Herring purchased the mill of the defendant, he agreed that if the wheel then in the mill was not satisfactory or suitable for the place, he would put one in that was satisfactory or suitable for the place. The defendant objected to the testimony for the reason that the contract for the sale of the mill was in writing, (that is, by deed,) and parol testimony could not bo received to alter it. If the evidence had been offered for the purpose which the objection supposed, it would have been well taken, but there was no stipulation in the deed of the kind offered to be proved by this evidence. Hence there was nothing in the deed upon this subject to alter or change. The evidence was not offered to affect the deed as a conveyance, but to prove an independent agreement collaterally connected with the sale of the mill, as evidenced by the deed, and for this purpose, we think, was properly admitted.
The only material question of fact litigated was whether the defendant was under a legal obligation to pay the plaintiff for the water-wheel and putting it into the mill which the defendant conveyed by his deed to Herring. If he was liable, it must be upon the ground of an express or implied contract, and in order to determine whether there was any such contract, the defendant was allowed to prove that a short time before he sold the mill to Herring, one Paddock had put in the wheel for him which was in the mill at the time of the sale to Herring, and he gave evidence tending to prove that he had a contract with Paddock, that if the *49wheel that he put in was not satisfactory he would put in one that was. This evidence must have been admitted upon the ground that under such circumstances it would be improbable that the defendant would make any such contract as the plaintiff claimed was made, and was proper for the jury to consider upon that question. The case finds that there was no contradictory testimony in relation to the defendant’s contract with Paddock, but the testimony thus far had only a tendency to prove it.
The defendant then offered to prove by Paddock that he had such a contract and agreement with him as is above stated, and that if the wheel in the mill at the time of the sale to Herring was not satisfactory, he would put one in that was; — thus removing all doubt (as far as it could be done by Paddock’s testimony) as to how the defendant had the right to understand the contract with him, and that Paddock acknowledged its binding force and validity. We cannot say that this evidence would have changed the result to which the jury came, but we think the defendant was entitled to the benefit of it as bearing upon the question whether any such contract was made as the plaintiff claims was made; and on account of its rejection the judgment is reversed, and cause remanded.