The of the court was was pronounced by

On the 16th of December, 1845, an agreement was entered into in writing between the plaintiff, Larue, and Hampton, the defendant, by which a retrocession was made of certain landed property acquired by Larue from Hampton, on which there was a steam-saw mill, which had been destroyed by lire, while in the .possession of Larue. The act states that Larue retrocedes to the defendant .the boiler .and engine, and all other parts of the machinery purchased of him, which were not destroyed by fire. The plaintiff reserves the use of the dwelling house, kitchen andjyard till the 1st of March, 1846, and that of a circular saw mill erected by him on the place, till he could saw the logs he had, after which he was to surrender the mill to the defendant, until he gave him entire possession, on the 1st of March, 1846. At the foot, of this agreement is .found the following acknowledgment:

“I do acknowledge that.omthe 1st day of March next, when my lease is out on the saw mill, that John La-rue is to have the machinery that he has put to the saw mill, with the shed, as I shall have no further claim on the same. JDated the 7th January, 1846, and signed] “ Noah Hampton.”

The plaintiff who has delivered the land now sues for the restitution of the machinery mentioned in this acknowledgment.

The defence is that the mill was retroceded to the defendant, with the Innd on which it is situated; .that the paper sued on is no contract, and that imposes no .obligation on the defendant to deliver the machinery .to which it refers; that the defendant never meant to make a donation to the plaintiff. The District Court gave judgment for the machinery, and §5400 damages. The defendant has appealed.

On the trial below, the defendant’s counsel took a bill of exceptions to the opinion of the court allowing the plaintiff to introduce parol evidence to prove what portion of the machinery had been furnished by him. This evidence was properly admitted. The defendant having acknowledged that a portion of the mrchineryhad been furnished by the plaintiff, and the acknowledgment *54being silent as to the enumeration of the articles, they could only be ascertain-e(^ by parol evidence; that evidence is merely explanatory of the acknowledgment, and goes neither against nor beyond it.

On the merits, the judgment is clearly right. The acknowledgment of the defendant explains the previous agreement, and interprets it, as we would have interpreted it, if the acknowledgment had never been made. The evidence in relation to the amount of the damages is conflicting, and we adopt the conclusions of the district judge.

The plaintiff has asked that the judgment be amended and rendered in his favor for the full value of the machinery, instead of the machinery and damages. We believe the judgment as it stands has done justice between the parties. If the plaintiff wished to be indemnified, for the time employed in litigation, he should have asked damages in another form.

Judgment affirmed.