Crump, P.,
delivered the opinion of the court.
The proceeding in the lower court was instituted by the filing of the petition for an attachment by John H. Rodgers & Company against Harriss, Magill & Company, Inc., a nonresident corporation, as principal defendant. The principal defendant appeared and answered the petition and the issue so made was tried before a jury. The trial resulted in a verdict for the plaintiffs for $5,155.48, on which judgment was rendered. The defendant, Harris, Magill & Company, Inc., the plaintiff in error, then procured a writ of error from the Supreme Court of Appeals. In order for a clear understanding of the errors assigned by the plaintiff in error, it is very essential in this case to [818]*818ascertain and bear in mind the exact character of the case for the plaintiffs and the nature of the defense.
The parties will be referred to according to the positions they occupied as plaintiffs and defendant before the lower court, Harriss, Magill & Company, Inc., being the defendant.
In the petition filed by the plaintiffs, composing a partnership under the style of John H. Rodgers and Company, they allege that the defendant, whose principal place of business was in New York, maintained an office and an agency in the city of Norfolk; that the defendant undertook, by an agreement with the plaintiffs, to provide for the plaintiffs freight room on a ship acceptable to them for certain cotton to be shipped from Norfolk to Bremen; that if a ship was more than fifteen years old the insurers required a higher rate on the cargo than on a ship that had been in service for a shorter number of years; that the defendant, when approachedQby the plaintiffs for the purpose of having it procure the necessary ocean carriage, named, for the performance of that service a steamship known as the Kian Maru, stating that she was about five years old; and that such ship was acceptable to the plaintiffs; that the defendant afterwards substituted for the Kian Maru the steamship Frances L. Skinner, stating that she was as good and satisfactory a vessel as the Kian Maru; that the plaintiffs accepted said steamship upon said statement, but afterwards learned that she was more than fifteen years old, and therefore the rate of insurance upon the cotton to be loaded on her would be in excess of the usual rate; that “this fact was communicated to the principal defendant and it agreed to pay the petitioners the difference between the cost of insuring their cargo on said vessel and what that cost would have been if said vessel had been less than [819]*819fifteen years old.” The petition further alleged that there was a custom to the effect that the shipping agents should pay such difference, and that the plaintiffs relied upon the custom, the representations and the contract. Upon the trial there was not sufficient evidence to establish such a custom and no instructions were given the jury as to that allegation. The case made by the plaintiffs upon the allegations in the petition rested upon their affirmation of the contract between the defendant company and themselves that the defendant company, upon the discovery of the higher rate of insurance because of the greater age of the steamship Frances L. Skinner, agreed and contracted to pay the difference in the insurance rates.
In the answer to the petition the defendant denied that there was any liability upon it by reason of the agreement or representation set out in the petition; that written agreements for the shipping of the cotton on the steamship Frances L. Skinner were entered into by the defendant as agent of the owners, Skinner and Eddy, of San Francisco, and the plaintiffs; that these contracts, together with the bills of lading, covered all transactions between the parties and constituted, taken together, a written agreement containing all the terms connected with the shipping agreement and with the ocean carriage; that any representation or verbal contract contradicting, varying, altering, or adding to the terms of these written instruments would not be and was not binding upon the defendant, and, therefore, no proof of any such representation or verbal contract would be admissible in evidence; that “it says that neither under the terms of said written contracts nor under the bills of lading used for said cotton was there any provision undertaking the warranty of the age or condition of the said vessel, Frances [820]*820L. Skinner, nor is there any provision in said written contracts referring to any other vessel, and that consequently this respondent is not bound on any such warranty or representation.”
Upon these pleadings the plaintiffs had the burden of showing that the verbal contract or representation alleged by them had been made by and with the defendant; and the defendant undertook to show that, the plaintiffs could not rely upon any such representation, contract, or warranty, for the reason that there was a written contract which could not be varied by parol proof of the agreement alleged by the petitioners, and therefore they had no standing in court and hence could not recover.
Upon the trial it was shown that the defendant corporation maintained an agency and office in the city of Norfolk; that its principal business was that of shipping agents; and the plaintiffs proved that prior to those transactions they had been doing business with the defendant, and on this occasion they approached it to book for them freight room for their cotton from Norfolk to Bremen; that they first named in the early negotiations the steamer Khan Maru, and by reason of a coal embargo this steamer, which was a foreign steamer, could not be obtained and therefore the defendant suggested the Frances L. Skinner; that the Khan Maru was a number one steamer and the insurance rates on her cargo would' not exceed the usual rates. Subsequently during the negotiations, when the Frances L. Skinner was suggested, the Nor- • folk agent for the defendant with whom the plaintiffs were dealing, in naming the steamer, said: “I have to know in an hour; New York is going to call me in an hour; and I will have to ask you to go and see Mr. Rodgers and agree if you will accept the other vessel. [821]*821You can assure him the vessel is equal in every respect-to the Kian Maru.” Witness then said that he hurried over to Mr. Rodgers’ office, told him of the situations, that the agent for the defendant, Glasscock, had stated that the Skinner was equal in every respect to the Kian Maru and the rate of freight was the same, and Mr. Rodgers agreed to the substitution; he further said thathe went back to Mr. Glasscock, told him that, and while he was talking to him the telephone bell rang, and Glasscock said New York was talking to him, and he answered and then said that the matter was all right, that the Skinner was fixed and would be on hand and would lift the cargo; that subsequently Rodgers and Company learned that the Skinner was over twenty years old and the increase in insurance would amount to considerable. The witness then further testified:
“I left Rodgers & Company’s office over on Front street and went right over to the Monroe Building where Harriss-Magill’s offices were, and Mr. Glasscock, was in the inner office and they said he was busy and could not be disturbed, but I insisted that they send him word to come out and he came out and I said: ‘Mr. Glasscock, this Skinner that you have substituted for the Japanese steamer is not of the same age as the Kian Maru, but she is well up in the twenties and there is a stiff insurance additional rate.’ He said: ‘We will take care of that and make it all right.’ He said: T got some Japanese in there with me; that will be all right,’ and went back in the office. I went then back to Rodgers & Company and told them that Harriss, Magill & Company would take care of that feature of the extra rate of insurance. They rested on that statement and the balance of the matter has been one of negotiations and correspondence between them and Harriss-Magill.”
[822]*822There was other testimony on the part of the plaintiffs, and the evidence on that side, taken together, was sufficient to authorize the court in submitting to the jury whether or not the alleged contract or warranty had been made by the.defendant.
On the part of the defendant the testimony shows a denial of the making of any such agreement, and the general course of the evidence for the defendant shows that it relied upon the preliminary shipping contracts and the bills of lading as constituting written agreements which contained nothing with reference to the additional insurance, or the rating, or age, or character, of the Frances L. Skinner. The defendant from time .to time moved the court to exclude all the testimony of the plaintiffs as to the parol agreement, on the ground that it tended to vary, contradict or add to a written instrument. At the end of the testimony the court gave the jury three brief instructions, telling the jury that the burden was upon the plaintiffs to prove their case by a preponderance of the evidence, and directing the jury to find for the plaintiffs if they believed from the evidence that the plaintiffs had established the agreement or contract set up by them in the petition.
The defendant assigned as error in the petition the refusal of the court to grant two instructions offered by its counsel. These two instructions embody the two propositions contended for by the plaintiff in error upon which all the assignments of error rest. These instructions are in the following language:
“No. 1. The court instructs the jury that an agent is not in any ease responsible in an action on a contract unless the credit has been given to the agent or he has expressly agreed to be liable, and if there is a written contract it must contain apt words to charge him. A duly authorized agent acting in bdhalf of his princi[823]*823pal is not personally responsible on a contract when the third party knows that he acts in the name and on behalf of his principal.
“And if you believe from the evidence in this case that Rodgers & Company knew that Harriss, Magill & Company were not the owners of the Frances L. Skinner, but were merely the agents thereof and acting-as such, in that case the court tells you the contract was the contract of the owners of the ship and not the contract of Harriss, Magill & Company, and you must find for the defendant.”
“No. 2. The court instructs the jury that when parties have deliberately put their engagements in writing in such térms as import a legal obligation, without any uncertainty as to the subject or extent of such engagement, it is conclusively presumed that the whole engagement of the parties and the extent and manner of their understanding was reduced to-writing, and all oral testimony of a previous colloquium between the parties, or of conversations or declarations at the time when it was completed, as would tend in many instances to substitute a new and different contract for the one which was really agreed upon, to the prejudice, possibly, of one of the parties, is rejected.. In other words as the rule is now more briefly expressed, parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument.
“And the court further instructs you that if you believe from the evidence that the written freight contracts Nos. 205, 209 and 246 were signed by Harriss, Magill & Company and Rodgers & Company and delivered by the latter to the former, and that bills, of lading covering the 6,202 bales of cotton carried for Rodgers & Company on the Frances L. Skinner were signed by Harriss, Magill & Company, and delivered. [824]*824to Rodgers & Company, ahd all of the same were by the latter accepted and appropriated, then the court tells you that these documents constitute the sole and exclusive engagement between the parties, aind in such event you must find for the defendant.”
It appears from the testimony that in October, 1919, the shipbroker who was acting for the plaintiffs approached the agent of Harriss, Magill & Company at the instance of plaintiffs, and told him that he wanted to procure room in a ship to Bremen for the plaintiffs, and a day or two afterwards the defendant named the Japanese steamer Kian Maru, which it said was five or seven years old. It is shown that four of the preliminary contracts were signed by the plaintiffs and the defendant, the first contract being dated the 13th of November and the last onfe about the 9th of December, 1919. The loading appears to have started early in December and several bills of lading were issued to the plaintiffs as shippers and were signed by the defendant as agent for the owners of the steamship, Skinner and Eddy, of San Francisco; that the cotton was all loaded and shipped under these bills of lading and the plaintiffs accepted the bills and negotiated them. The preliminary shipping contracts were all similar, and, in order to show their exact purport, one of them is now transcribed, as follows:
Harriss, Magill & Co., Inc.
Steamship Owners, Agents and Brokers .
New Monroe Building
Norfolk, Va.
Contract No. 209
Broker’s No...........
Shipper Rodgers & Company
Address Norfolk, Va.
Gentlemen:
“We confirm engagement of freight room from Nor[825]*825folk-Newport News, Va., to Bremen, Germany, Via
“Commodity: 1000 Bales High Density Cotton — 1500 Bales Standard Cotton.
“Rate: One Dollar Seventy-five ($1.75) per 100 pounds High Density.
“Two Dollars ($2.00) per 100 pounds Standard.
“Steamer: Frances L. Skinner
“Sailing date: Expected due November 20th.
“Subject to following conditions:
“Steamer reserve right of lifting grain in excess of their net registered tonnage.
“Grain ordered for vessel prior to noon shall be delivered to vessel by noon of the following business day.
“Freight originating locally is to be delivered on twenty-four hour call from the company.
“It is agreed and understood that this contract is to be carried out under terms and conditions of bills of lading issued by the steamship company.
“This contract is subject to all war clauses and: or other clauses and: or regulations in force by the steamship company with whom contract is made at time shipment goes forward from seaboard.
“In consideration of your making application to the Traffic Control Manager for G. O. C. authority for movement of above from point of shipment to Noriolk-Newport News, shippers hereby agree to indemnify you against any liability or expense for demurrage, storage or otherwise for which you would not be responsible if such applications were not made and the shipment not consigned in your name.
“(The vessel shall have liberty to deviate for the purpose of making trial trips and shall pay any reason[826]*826able increased cost of cargo insurance, if any, incurred in consequence thereof.)
“(The steamer being subject to the control of the U. S. Shipping Board, it is understood that if she is withdrawn from the company’s service, the company may, at its option, either cancel this contract or ship the goods by another steamer.)
“Yours very truly,
“Harriss, Magill & Co., Inc.,
“G. A. Glasscock, Agent.
“Accepted:
“Rodgers & Co.
“By..............................
“Shippers.
“Freight Brokers: Mr. A. C. Humphreys.”
The bills of lading following upon these contracts were documents of considerable length, as is usually the case with bills of lading providing for ocean carriage. They give the name of the steamer and the names of the owners of the steamer, and were signed by the defendant as agent of the carriers.
The two questions raised upon the record for this court to decide arose upon the contentions of the plaintiff in error, first, that the defendant, acting as it was in making the preliminary contract as agent for the owners of the steamship, even if then not disclosed, could not be sued by reason of any oral statements made by them prior to or contemporaneous with the execution of the shipping contracts and bills of lading; second, that the case cannot be maintained because the alleged contract sued upon rested altogether upon parol testimony, and the court erred in failing to sustain their motion to reject such testimony and in failing to give their instructions, on the ground that such testi[827]*827mony was plainly in violation of the parol testimony rule.
It is insisted for the defendant company that it, through its agency at Norfolk, in the transactions it had leading up to the shipping agreements and bills of lading, was acting as agent for the steamer or the owners of the steamer. In the view we take of the ease, it is not essential to determine whether the name of its principal was disclosed at the time the preliminary contracts were made, or only later when the bills of lading were signed containing the name of the principal of the defendant.
Learned counsel for the defendant referred to various eases in Virginia in which the well known rule is declared that parol evidence is not admissible to vary or contradict a writing when a complete memorial or agreement of the parties is in writing. These authorities include the well known case of Slaughter v. Smither, 97 Va. 206, 33 S. E. 544, and other cases up to the most recent ease on the subject, Continental Trust Company v. Witt, 139 Va. 458, 124 S. E. 265. In reply to the positions taken by the plaintiff in error, the defendants in error insist that under all the circumstances the verbal agreement in question was a collateral agreement, independent of and distinct from the subject of the written agreement, and therefore could be shown by parol. The defendants in error likewise referred to various Virginia eases in which several well known exceptions are made to the parol evidence rule — such cases as Houck Tanning Co. v. Clinedinst, 118 Va. 131, 86 S. E. 851; Clark v. Hugo, 130 Va. 99, 107 S. E. 730; and Whitaker v. Lane, 128 Va. 317, 104 S. E. 252, 11 A. L. R. 1157.
The many exceptions allowed to the parol evidence rule have created some confusion as to its application, [828]*828but it is not necessary for the court to consider whether or not the oral agreement here falls within any of those exceptions, at least not to the same extent as would have been the case if Skinner and Eddy had been made the defendant.
The contention of the defendant is that the complete contract in writing, consisting of the several papers mentioned, was a contract not between the defendant here and the plaintiffs, but was a contract between the ■ principals of the defendant and the plaintiffs. If the action here had been against Skinner and Eddy, the principals of the defendant, it might be that thejr would not be bound by anything done by them or their agent in prior negotiations, or in contemporaneous dealings; but the question is not presented in that way by the record before us. This is-a proceeding in which the plaintiffs are suing the defendant corporation personally and not as agent, nor are the plaintiffs suing the principal in transactions in which the defendant dealt as agent.
If an agent, while negotiating for a written contract to be made by him for his principal with a third party, undertakes on his own responsibility to make a contract himself with the third party, the agent may bind himself personally' by an oral agreement, although the contract resulting from the negotiations which he makes for his principal is in writing. The agent may so bind himself, whether the principal i& disclosed or not.
This principle of law is as well settled as the principle that when one enters into a contract, orally or in writing, in his own name when he is, in fact, acting as agent for another, without disclosing his principal, the other party may, as a general rule, hold either the agent, or his principal, when discovered, personally [829]*829liable on that contract. Here, however, the plaintiffs are not seeking to hold the defendant liable on a contract he made for or in the name of his principal. The plaintiffs assumed the burden of proving that the defendant personally made itself liable on an oral contract to pay the difference in the insurance rate, as an inducement to the plaintiffs to enter into and continue the execution of the written contract with the principal. That such a suit can be maintained seems to be well settled. The contract in a ease of that character is separate, independent of, and distinct from the eon-' tract ■ made by the agent for his principal.
The most familiar instance of such an agreement occurs in the case of an independent contract made by an agent when selling the goods of his principal, to warrant the quality of the goods so sold, as was the case in Wildar v. Cowles, 100 Mass. 487. See also Dahlstrom v. Gemunder, 198 N. Y. 449, 92 N. E. 106, 19 Ann. Cas. 771; Shordan v. Kyler, 87 Ind. 38; Davis v. Patrick, 141 U. S. 479, 12 S. Ct. 58, 35 L. Ed. 826; Montague Co. v. Aycock-Holly, 139 Va. 714, 124 S. E. 208.
In 1 Meehem on Agency (2nd ed.) this and cognate subjects are dealt with in sections 1424, 1427 and 1444. In section 1427, under the caption, “agent may bind himself by collateral contract,” Mr. Meehem says:
“Still further, it is possible that the agent may bind his principal only upon the main or principal contract and may bind himself only by a subsidiary contract collateral to the main one. Thus, an agent in selling his principal’s goods, for example, may add to the contract of sale which he makes for his principal his own collateral agreement to warrant the quality of the goods so sold. In such a ease, of course, there is no room for election, because both are not bound to the same undertaking.”
[830]*830The plaintiffs’ ease must stand upon this principle of law.
Applying this rule to the defense, it becomes plain that the evidence of an oral agreement tending to establish a personal contract or a warranty directly between the plaintiffs and defendant was admissible, because the contract was distinct from and collateral to the main contract made with the principal of the defendant, that principal not being bound by the contract. Such a collateral contract is not within the parol evidence rule because it does not vary or contradict the terms of the written agreement made between the parties to it, although one of the parties is acting through an agent.
While we have not followed exactly the line of argument of counsel in stating the grounds upon which we reach our conclusion as to this question, we are satisfied that our decision is founded upon sound reason and fundamental principles, and is in harmony with the analogies of the law. In this case the plaintiffs were not suing upon the written contract nor seeking' to enforce any of its terms, nor were the defendants immediate parties to the contract, as they were manifestly acting only as agents or brokers in procuring-cargo room on an ocean steamship for the plaintiffs. It is evident that, from a business standpoint, the defendants were somewhat in the same situation as a modern fire insurance agency when approached by a. property owner for a policy against fire. In stating theparol evidence rule the courts are careful to show that, it applies only between the immediate parties and their-privies (Whitaker v. Lane, 128 Va. 317, 104 S. E. 252, 11 A. L. R. 1157) though in some eases a controversy may arise as to what is meant by an immediate-party. It is true that in a proper ease an agent, though. [831]*831acting in Ms own name, yet for an undisclosed principal, may bind Mmself personally upon a written contract. But such a presumption is excluded in this ease as the defendant was, in signing the written contract acting as agent and disclosed its principals in concluding the freight transaction, by executing the bills of lading in the name of the principals.
It is likewise a well established principle that the rule excluding parol evidence does not apply to a controversy between third parties, or between a third party and one of the parties to the written instrument. Rosella v. Commonwealth, 110 Va. 235, 65 S. E. 526; Bruce v. Roper Lumber Co., 87 Va. 381, 13 S. E. 153, 24 Am. St. Rep. 657.
In the case of Follinsbee v. Sawyer, 157 N. Y. 196, 51 N. E. 994, a real estate agent sued for his commissions on negotiating a sale. The plaintiff put in evidence an option, signed by the owner and addressed to certain parties, which had been abandoned but which by a subsequent endorsement on it, signed by the owner and two purchasers, was claimed as a completed contract of sale between the owner and the purchasers. The plaintiff insisted that this was proof of his having procured a purchaser willing to buy on the terms prescribed by the «owner. The defendant offered parol evidence tending to show that the endorsement was not intended as a complete and binding agreement on the part of the purchasers. In holding that the evidence was admissible, and so reversing the judgment of the trial court, O’Brien, J., states:
“Whatever may be said about that paper it certainly was not a contract between the parties to this action. It was signed by the defendant and the two parties who it is said were willing to purchase, but the plaintiff was not a party to it in any legal sense. The [832]*832statements in it did not bind Mm. He was not concluded by it, and he could have resorted to parol proof to make out his case. The rule of evidence that makes a written contract conclusive proof of what the parties have agreed to, thus merging in it all prior parol negotiations, and wMch rejects parol proof to vary or contradict the writing, or its legal import, applies only in controversies between the parties.” See also Garber v. Martin, 67 Neb. 445, 93 N. W. 722; Gierman v. Barbieri, 124 Miss. Rep. 157, 207 N. Y. S. 174.
See also the case of Harvey v. Henry, 108 Iowa, 168, 78 N. W. 850, where it is said in the syllabus:
“Parol -variance: Collateral contract. An agent’s oral agreement, in making a sale in wMch he had a special interest, by written contract that, as an additional inducement, he will surrender certain notes held by Mm against the buyer, may be shown by parol in an action on such note by the agent, though the written contract of sale, made in the name of the principal, was complete; since, as against the agent, the oral contract did not conflict with the written one, but was collateral thereto.”
In Hull v. Brown, 35 Wis. 652, the plaintiff, Hull, entered into a written contract with Gunmson & Sherman, through their agent, Brown, for the purchase of a cultivator. The written contract itself contained a warranty of good material and effective work. At the time the contract was signed by Hull, Brown agreed orally that if the cultivator did not work satisfactorily, he was to return Hull’s purchase money note to Mm or pay it Mmself, and Hull should return the cultivator to the railroad station. Hull sued Brown on this, oral contract. It was insisted by the defendant that oral testimony was inadmissible to prove the verbal agreement, and also that the contract sued upon came witMn the [833]*833statute of frauds of that State. In upholding a judgment for the plaintiff, the court says, in reference to the first point (656):
“There can be no doubt about the correctness of the legal proposition stated in the brief of counsel for the defendant, viz., that parol testimony is inadmissible to vary, contradict or add to a contract which has been reduced to writing, and that, in the absence of all allegation of fraud or mistake, it will be presumed that the written agreement expresses the final intention of the parties upon the subject matter of the contract. It is needless to remark that this rule of evidence is elementary. And, therefore, it is entirely clear that if the plaintiff had brought an .action against Gunnison & Sherman, he Would be bound to show a breach of the written contract set out in the answer, in order to recover. In that case, the "written order would prevail over any verbal contract claimed to have been made by the plaintiff with their agent contemporaneous with the giving of this order. But the plaintiff is not seeking to recover upon a contract made with Gunnison & Sherman, but upon one made with the defendant personally, upon which the latter alone is liable. It is the individual obligation of the defendant which the plaintiff seeks to enforce; consequently the rule above alluded to can have no application. Whether or not the plaintiff made the parol contract with the defendant, as he claims, was a question of fact upon the evidence.”
The legal principles established in the cases referred to show the correctness of Mr. Mechem’s statement of the law and of our conclusion that the parol evidence admitted in the instant case did not vary or contradict the terms of the written instrument put in evidence by the defendant, nor alter in any way its legal purport, but that its only effect was to show an agreement be[834]*834tween the parties to this action entirely different from the writing relied upon. It was open to either party to .this action to prove or disprove the contract upon which the plaintiff relied independent of the writing.
The circumstances of the instant case require, with much more reason than in any of the cases cited above, that the plaintiffs should not be precluded from proving their contract by parol evidence. In some of those eases, where the agent sought to be held personally was a special agent for a named principal, and engaged in negotiations with a third party under his authority as agent, a statement made by him in reference to the subject matter of the agency was presumed to be made by him in his character of agent, and it was required that his personal undertaking should- be expressly shown. In the case here the defendant company, however it may be designated, was engaged in its own independent business in the city of New York, with a branch office in Norfolk. It held itself out to the public as conducting a general shipping or forwarding agency, which had for its purpose the procurement and placing of ocean transportation for persons who might seek its services in that regard.
When approached by the plaintiffs it undertook on its own account to find a suitable steamer for them. All the negotiations relative to the selection of a proper ship were carried on between the parties to this action verbally. When the steamer Skinner was selected, the preliminary contract that this steamer would carry the cargo was executed by defendant solely as agent, as it insists, although no principal was then named. This was immaterial, as the procurement of a ship was the subject of the dealings between the parties, and the shippers were not interested in who were the owners; the first steamer suggested seems to have been of [835]*835foreign registry and ownership. There is no presumption here that the defendant was acting as agent in making the agreement sued on. There is no suggestion that under any circumstances they had authority to bind the ship owners by such an agreement. It was a representation of a fact, acted upon by the other party, made by the defendant in the course of its own independent business dealings with the plaintiffs.
In order to reach a proper solution of the question before us, the following leading features of the case arising upon the records must be steadily borne in mind, viz: (1) That Harriss, Magill & Company, Inc., were not sought out nor approached by Eodgers & Co. as agents for the Japanese owners of the Kian Maru, nor of the owners of the Prances Skinner, but for the purpose of soliciting the personal services of Harriss, Magill & Company, Inc., in the irregular business of making enquiries in shipping circles and procuring cargo room for intending shippers, and that primarily the negotiations had between them were with reference to that undertaking; (2) that the special oral promise sued on here, whether express or implied, grew out of the search for a suitable ship and was made in regard to the selection and procurement of such a vessel; (3) that the promise or warranty sued on did not relate to the mere carriage, nor to any of its proper incidents; (4) that when it came to entering into an agreement binding the steamer to take the cargo, and the shippers to ship it by that steamer, Harriss, Magill & Company, Inc., insist, both in their pleadings and in argument, that the preliminary contracts in writing do not evidence an agreement between them and the plaintiffs, but that they executed these contracts only as agents for the steamer, or for the owners.
The verbal contract sued on here is much more than [836]*836merely collateral to the freight or transportation contract made on behalf of the steamer, and is entirely independent of it and its terms. If this independent contract was made by the defendant, it alone assumed responsibility for its performance, and personal liability for its breach. We see no reason in this ease to invoke the parol evidence rule, as the defendant disclaims any liability upon the written document, which it is claimed the parol evidence tends to vary. This is not a suit on that written contract, nor between the parties to it. The trial court correctly said, as the petition states, that “it should also be observed that this ease is in legal effect an action of assumpsit upon the parol promise, and the written contracts were admitted as evidence and were only necessary to show the amount of damages plaintiffs had suffered. It was in no sense a suit on a written contract.”
The plaintiffs appear to have made demand upon the defendant very promptly for reimbursement of the amount sued for, as the steamer sailed about December 15th and on January 2nd following they wrote the defendant giving it the exact amount and requested payment.
The court, therefore, did not err in allowing parol evidence to be admitted, and it did not err in failing to instruct the jury that the defendant could not be sued because it had been acting as agent in the main transaction, or in faffing to instruct the jury that the defendant could not be sued because the main contract constituted the sole engagement between the parties and was in writing, as in fact, the defendant here was not in its own right a party to that contract upon its own theory, if it was acting altogether for another.
It is not necessary, therefore, to consider whether or not the two instructions offered by the plaintiff in error otherwise correctly state the law.
[837]*837In the petition for a writ of error the objection made to the instructions given for the plaintiffs are that they entirely ignore the fact that there was a written contract, and that they disregard the question of agency. As we have seen, it was not proper to instruct the jury upon these matters.
It is insisted that the case bears with some degree of hardship upon the defendant, as it will be called upon to pay the large sum for which judgment was rendered against it. The record does not disclose whether or not there is, or can be made, any arrangement between it and the ship owners. However that may be, upon the whole record we are of the opinion that the defendant can be sued upon its own, personal contract, notwithstanding the fact that in the making of the main contract it was only acting as agent; that the question of whether or not a personal contract binding upon the defendant was made by it was submitted to the jury, and they having found for' the plaintiffs upon the evidence, neither the trial court nor this court should interfere with their verdict.
Our conclusion, therefore, is to affirm the judgment of the lower court.
Affirmed.