Suit was brought by Bell against tire defendants for the breach of an alleged agreement of the following tenor:
“Alma, Gratiot Co. Mich. May 12, 1865.
George S. Bell, to Utley & Hance, Dr.
To one million feet of pine saw logs, marked diamond sliape, said logs now being in tlie possession of tbe Tittabawassee Boom Company, of Saginaw City, at $5 per M, $5,000.
*509Received of George S. Bell, §5,000, in full payment, of tlin above logs, and we hereby guarantee our title to said logs, to be perfect, and hereby agree to warrant and defend the title of said George S. Bell to said logs, against all persons whatsoever claiming or to claim the same. We also hereby order and direct the said Tittabawassee Boom Company to deliver said logs into the possession of said George S. Bell, on presentation of this order.
U. S. Revenue Stamp, Five Cents,
Attest: D. W. C. Chapin.
TTLEY & HAHCE.*’
Upon the trial, he gave evidence of the execution of the paper, and that the lumber in possession of the Boom Company amounted only to 739,575 feet, and rested.
The defendants then gave in evidence a prior agreement, dated May 5th, 1865, whereby they bargained and sold o Bell, their pine logs in the hands of said Boom Company, “ supposed to be one million feel,” for the sum of $5,000, payable partly in land and partly in money on time', the bargain to be void if the land was not satisfactory as represented.
One of the defendants was then asked as a witness, what was intended by the order óf May 18th, in respect to ■the lands sold, and answered under objection, that it was intended to aid plaintiff in getting the logs out of the boom, in case there should be any difficulty. That he paid nothing more than was stipulated by the preceding agreement; that the logs were not sold at $5 a thousand, and that he told plaintiff how many logs he supposed 'they had, and showed him the scale on their book, and that the scale was correct, and he told Judge Chapin to write an order, and supposed he wrote the paper of May 18th. Utley also testified that no new agreement was made or talked ofi and that he considered the bargain finished when the lands were found satisfactory, and the deed was made on May 9th. Bell inreply, testified that the talk was about $5 per thousand, and that defendants said they thought their scale was correct, and would hold out.
*510The court being requested to charge that the papers of May 5th and May 12th must be construed together, and in case of conflict the last must govern, and that the words “supposed to be one million feet,” must be construed as equivalent to a statement that there was such an amount, declined so to charge; but did charge the jury that if both papers related to the same transaction, and the first was in force, not abandoned or rescinded, the property intended to be sold by defendants, and purchased by plaintiff, was fixed thereby, and the subsequent paper must be construed as referring to the same logs, and could not have the effect to enlarge the subject of sale and purchase.
The court being further asked to charge that, if the jury believed the paper of May 12th, expresses the intent of the parties at that date, it should govern, declined so to charge, but did charge that it was the duty of the court to construe that paper, and to determine the intent of the parties from all the instruments in writing made by them, and that there was no evidence of any new terms negotiated between the parties.
We think the action of the court below was correct throughout. The first agreement transferred title to all the logs, subject only to the contingency of dissatisfaction with the lands given in exchange, which were accepted prior to May 12th.
To rescind this bargain, and to substitute new terms, would require proof of some positive agreement upon a valid legal consideration. No new consideration passed, and it was certainly competent to show this, and that the new paper was not the result of any new agreement. Had it appeared to be an agreement upon consideration, then it might be claimed, with some force, to be beyond contradiction as to its meaning by parol proof; but, until it is established as a valid agreement, it can have no such ioree. The papers, as conceded on both sides, are to stand together, and if this be so, the later document can in no *511sense be considered an agreement, but must be regarded as something given to aid in carrying the real agreement into effect. It could, therefore, be no cause of action in itself, and plaintiff, having made out no case under anything else, could not recover, under any circumstances, in this action. If he had any cause of action whatever, it could only have been in connection with the first contract, which is not asserted or relied upon here.
Judgment was properly given against him, and it should he affirmed, with costs.
The other Justices concurred.