In this case, I am of opinion that a new trial ought not to be granted. However incompetent it might be, for the plaintiffs to prove, by parol testimony, that at the very time when the bills of lading were executed, it was agreed by the parties, that the voyage should not be such as it purported to be, by the bills of lading ; yet the admission of parol testimony, in this case, does not, by any means, contravene this principle.

It has always been considered proper for a defendant to a-⅛ ail himself of parol evidence, to prove an accord executed, in discharge of a written agreement, previously, by him made. Ry evidence of this kind, he avails himself of some act performed by him, and accepted by the plaintiff, not contemplated by, or comprised in, the original agreement. This principle being admitted, it follows of course, that a plaintiff may avail himself of such posterior agreement carried into execution, as well as a defendant. It is, really, a new contract, entered into and performed, with respect to the subject matter of the written agreement. By the consummation of the new contract; that is to say, by its being not only made, but executed ; the old one is done away.

It was competent for the plaintiffs to charge the freight of the articles shipped, on book, and prove the price agreed on to be paid, in the manner in which it was proved to the court.

I, therefore, should not advise a new trial.

New trial not to be granted.