These were two actions brought by way of summary process, for two quarters’ hire of a negro, at the rate of one hundred dollars per year. The defence was, that by a written agreement between the parties, it appeared that the defendant was to pay annually, and that the plaintiff could neither sue until the end of the year, nor split the sum into quarterly instalments, so as to bring it within the summary jurisdiction of the court, and that parol evidence ought not to have been admitted, to shew that it was the intention of the parties that the payments should be made quarterly. The presiding judge being of that opinion, ordered a nonsuit. This is a motion to set aside that nonsuit.

If the written agreement had said that the defendant should pay sixty or a hundred dollars per annum, to be paid annually, I should have concurred in the opinion that has been given ; but what is called a written agreement, is nothing more than a loose memorandum, the first part of which is a receipt for fifteen dollars ; and the latter part a permission to keep the negro for three years, at the rate of sixty dollars for the first year, and a hundred dollars for *229each of the two last years, without saying when the money shall be paid. It was, therefore, competent, to the plaintiff to shew by parol evidence, that it was to be paid quarterly. Peake, 117, 118. But, in fact, the evidence offered in this case, cannot be called parol. It consisted partly of the acts of the defendant, and partly of written instruments, which went to give a construction to this memorandum', or rather the defendant’s own view of it. The first was proof that.he was in the habit of paying quarterly. 2, His own letter, in which he acknowledges a quarter’s hire was'due. 3. Mr. Bennett’s receipt for $25, being the amount of one quarter’s hire for the two last years ; and lastly, the agreement itself, which contains a receipt for fifteen dollars, being the amount of one quarter’s hire for the first year, dated one quarter of a year after the hiring commenced. I am of opinion that the evidence ought to have been received, and that a new trial ought to be granted.

In these cases I am of opinion that the motion claiming to set aside the nonsuit, ordered by the District Court, and for new trials, ought to be granted.

The reasons on which this opinion is founded, are briefly these : 'The facts stated in the brief, taken in connection with the written documents which were produced in evidence on the trial, and also on the argument of this motion, furnikh the material circumstances upon which the decision of the motion must depend, and must be considered as forming a report of the cases decided. The report of the judge, who decided them, not being obtained, the counsel on both sides concur in the statement presented. ■ From these documents the following facts appear: That the actions were brought for the services of a slave belonging to the plaintiff", who was hired to the defendant for three years, at the rate of so much by the year. This agreement appears by the receipt of Mr. Bennett, who was the plaintiff’s agent in this business, and who, after acknowledging the receipt of so much in satisfaction of the services of the slave then due, states the terms upon which the slave is to continue in the defendant’s possession. It is not very clear, from the wording of this paper writing, at what periods the payments were to be made, whether at the end of three years, or at the end of each and every year. Under all the circumstances of the case, it might have been proper to construe it to mean payments quarterly. I should incline to expound it, as intending annual payments. But it was in evidence that the defendant had been in the habit of pny-ing quarterly, and had acknowledged that a quarter’s wages was due. It further appeared, that the defendant 'expressly promised *230t0 ^le sums demanded, not long before the trial. All these circumstances concurred to raise a presumption that the contract with Bennett, was intended to lay the defendant under an obligation to Pay ^or ^le serv‘oes °f the slave quarterly, although the hiring was for three years, at such and such rates per year ; or they might have been considered as evidence of a subsequent parol agreement between the parties, upon sufficient consideration, altering the terms of the former contract, which was reduced to writing by Mr. Bennett.

The ground upon which the judge decided in the District Court, as stated in the brief, was, that the defendant could not, by any act of his, annul the agreement made with Mr. Bennett, which was reduced to writing. If the judge had, upon full consideration of all the evidence submitted to him, decreed for the defendant, I should not think this court would be authorized to set aside the decree; because the writing of Mr. Bennett might be properly construed to intend annual payments; and because the judge was as competent to decide on the matters of fact submitted to him, as any member of this court can be supposed to be. But having ordered the nonsuits on the express ground that the parties were not competent to enter into a parol agreement, which would be different from the agreement before made in writing ; and that the written agreement, contained in Mr. Bennett’s receipt, could not be annulled by any act of the defendant; I am of opinion that he was mistaken in point of law, and that he was at liberty, and ought, to have taken into consideration the oral testimony, and the other evidence which was given, relative to the contract and the execution of it, in order to determine what was the intention of the contract entered into originally between the parties ; and whether they had not subsequently entered into a parol agreement, varying the terms originally established ; and that this judgment should have been upon all the evidence submitted, by a decree in favor of the plaintiff or defendant; and ought not to have been upon a rejection of the evidence, supposed to be inadmissible, as repugnant to the con. tract in writing.

In this case the court is unanimously of opinion, that the nonsuit should be set aside, because, allowing that Thomas Bennett, Jr., was the agent of the plaintiff, and was authorized to make the agreement produced by the defendant on the trial, yet that paper shews that the defendant, at the very time, understood that the payments were to be made quarterly, as Thomas Bennett acknowledges therein to have received a quarter’s hire of the *231¡legro, and that the agreement is extended bask one quarter at the time the payment was made, where the agreement was entered into for three years hire ; and this appears to have been the construetion adopted by the defendant himself, not only when he received the above receipt from Thomas Bennett, in which the agreement is recited, but by a subsequent receipt also, produced and signed Thomas Bennett, above a year afterwards, for another quarter.