Mr. Justice Morris
delivered the opinion of the Court:
1. With reference to the recovery sought by the second count of the declaration for the failure of the defendant to reconvey the so-called orchard lot to the plaintiff, no consideration is required by us. The plaintiff Js testimony fully sustains his claim in that regard; and there is no pretense of testimony to controvert it. Whatever may be thought of the defendant’s action in other respects, there, can not be [53]*53the least doubt that his disposition of the orchard lot in violation of his contract was a deliberate fraud upon the plaintiff’s rights for which the plaintiff was entitled to recover damages. The fourth instruction given by the court to the jury on behalf of the plaintiff so held ; and it was a proper instruction. The defendant requested no instruction on the point; but contented himself with an exception to the instruction granted for the plaintiff, which is made the basis of one of his assignments of error, the twenty-fourth in the series. This assignment, therefore, is without merit.
2. Addressed mainly to the subject matter of the controversy under the first count of the declaration, there is the unusually large number of forty-four (44) assignments of error, which, however, may be reduced to three or four different heads, and so considered by us. The greater number of them simply raise the same question, that of the admissibility of oral and extraneous evidence to explain the written contract between the parties; and this is the principal question in the case.
Of course, the law is well settled, that, in general, no such evidence is admissible. But the theory of the plaintiff is that there is a latent ambiguity in the contract by reason of the use of the word “properties;” and therefore that it was competent to show by extraneous evidence what the intention was of the parties in the use of the word. The argument is, that by the word “properties” was meant, not the several pieces of property or land conveyed, but the interest of the defendant therein; and that the guarantee that the sale of the property should realize not less than $17,000, meant $17,000 over and above the incumbrances.
But we think that there is neither latent nor patent ambiguity in the contract in such sense as that extraneous testimony is required to explain it. If there is ambiguity at all, it seems to us to be rather patent than latent. But the language appears to us to be sufficiently plain, although [54]*54it might have been more lucidly expressed. The language is that “the said Lancelot A. Hartman guarantees to sell said properties hereby conveyed by him to party of the first part for a sum of money that shall be not less than $17,000.” What property or properties did Hartman convey, or contract to convey ? Not any specific parcels or lots of land, but those parcels of lands subject to certain distinctly specified mortgages — in other words, his equities or equitable estates in those several parcels. And it is what he conveyed that he contracted to sell for the benefit of the plaintiff for not less than $17,000. It necessarily follows that he guaranteed that the equitable estates which he conveyed to the plaintiff were worth not less than $17,000. This is the legal construction of the contract; and while the insertion of the words “over and above all incumbrances”,after the $17,000 might have more fully expressed the intention of the parties, they were not necessary. And, of course, it was not necessary to supplement the legal construction of the contract by any testimony to show that this legal construction was what the parties intended. Oral and extraneous testimony to explain the contract was, therefore, both unnecessary and improper.
But is the judgment to be reversed because there was error in the admission of this extraneous testimony ? By no means. The error evidently did no harm to the defendant. The oral testimony simply tended to prove what the contract itself should be construed to have conclusively proved. It added nothing in law to the force of the contract. In fact, the error must be deemed to have been beneficial rather than injurious to the defendant, since it left it to the jury to determine what the contract meant, or what the true contract was between the parties, when the court might have positively and peremptorily instructed the jury that it meant precisely what the plaintiff contended was the intention. Such an error under such conditions is not one for which a reversal of judgment would be justifiable.
[55]*55These considerations will serve to dispose of sixteen of the appellant’s forty-four assignments of error; namely, the first, second, third, fourth, fifth, sixth, seventh, eighth, fourteenth, fifteenth, seventeenth, eighteenth, twentieth, twenty-ninth, thirtieth and thirty-first — all of which are based on the admission in evidence of the oral and extraneous testimony adduced by the plaintiff.
But while the plaintiff’s testimony introduced for the purpose of explaining the written contract was inadmissible for that purpose, a large part of the testimony, to which exception seems to have been taken, was admissible to prove the amount of damage sustained by the plaintiff. In that category is included the testimony adduced to show the values of the several pieces of property conveyed by the defendant to the plaintiff and of the farm conveyed by the plaintiff to the defendant. And the deeds of the farm made subsequently by the appellant and by others who derive title from him were admissible for the same purpose, and for the purpose of showing that the defendant had placed it out of his power to reconvey the orchard lot, or to submit to a rescission of the contract. We find no error in the admission of any of this testimony. And, consequently, we must hold that the eleventh, twelfth and thirteenth assignments of error, which are based upon such admission, are without foundation in law.
The ninth and tenth assignments of error are trivial and unimportant, and do not seem to be seriously insisted on. The sixteenth and nineteenth assignments relate to questions propounded to the defendant’s witnesses in cross-examination intended to impeach their veracity, or, rather, to lay the foundation for such impeachment. We find no merit in any of these assignments, and need not give them further consideration.
Nineteen assignments of error are based on the granting of the four instructions given to the jury on behalf of the plaintiff, and the refusal of the fifteen instructions requested [56]*56on behalf of the defendant. Of these nineteen assignments of error, one, the twenty-fourth in the series, has reference to the second count in the declaration, and has already-been disposed of; and three, the twenty-ninth, thirtieth and thirty-first, which are founded upon three several instructions requested by the defendant with regard to the testimony introduced by the plaintiff to explain the written contract, have likewise been disposed of in our consideration of that testimony, and the admissibility of it. The refusal of these instructions, under the circumstances, could not have prejudiced the defendant.
3. As already stated, three instructions were given to the jury on behalf of the plaintiff with reference to the principal subject of controversy, the guarantee of the defendant to sell the property conveyed by him for not less than $17,000.
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Mr. Justice Morris
delivered the opinion of the Court:
1. With reference to the recovery sought by the second count of the declaration for the failure of the defendant to reconvey the so-called orchard lot to the plaintiff, no consideration is required by us. The plaintiff Js testimony fully sustains his claim in that regard; and there is no pretense of testimony to controvert it. Whatever may be thought of the defendant’s action in other respects, there, can not be [53]*53the least doubt that his disposition of the orchard lot in violation of his contract was a deliberate fraud upon the plaintiff’s rights for which the plaintiff was entitled to recover damages. The fourth instruction given by the court to the jury on behalf of the plaintiff so held ; and it was a proper instruction. The defendant requested no instruction on the point; but contented himself with an exception to the instruction granted for the plaintiff, which is made the basis of one of his assignments of error, the twenty-fourth in the series. This assignment, therefore, is without merit.
2. Addressed mainly to the subject matter of the controversy under the first count of the declaration, there is the unusually large number of forty-four (44) assignments of error, which, however, may be reduced to three or four different heads, and so considered by us. The greater number of them simply raise the same question, that of the admissibility of oral and extraneous evidence to explain the written contract between the parties; and this is the principal question in the case.
Of course, the law is well settled, that, in general, no such evidence is admissible. But the theory of the plaintiff is that there is a latent ambiguity in the contract by reason of the use of the word “properties;” and therefore that it was competent to show by extraneous evidence what the intention was of the parties in the use of the word. The argument is, that by the word “properties” was meant, not the several pieces of property or land conveyed, but the interest of the defendant therein; and that the guarantee that the sale of the property should realize not less than $17,000, meant $17,000 over and above the incumbrances.
But we think that there is neither latent nor patent ambiguity in the contract in such sense as that extraneous testimony is required to explain it. If there is ambiguity at all, it seems to us to be rather patent than latent. But the language appears to us to be sufficiently plain, although [54]*54it might have been more lucidly expressed. The language is that “the said Lancelot A. Hartman guarantees to sell said properties hereby conveyed by him to party of the first part for a sum of money that shall be not less than $17,000.” What property or properties did Hartman convey, or contract to convey ? Not any specific parcels or lots of land, but those parcels of lands subject to certain distinctly specified mortgages — in other words, his equities or equitable estates in those several parcels. And it is what he conveyed that he contracted to sell for the benefit of the plaintiff for not less than $17,000. It necessarily follows that he guaranteed that the equitable estates which he conveyed to the plaintiff were worth not less than $17,000. This is the legal construction of the contract; and while the insertion of the words “over and above all incumbrances”,after the $17,000 might have more fully expressed the intention of the parties, they were not necessary. And, of course, it was not necessary to supplement the legal construction of the contract by any testimony to show that this legal construction was what the parties intended. Oral and extraneous testimony to explain the contract was, therefore, both unnecessary and improper.
But is the judgment to be reversed because there was error in the admission of this extraneous testimony ? By no means. The error evidently did no harm to the defendant. The oral testimony simply tended to prove what the contract itself should be construed to have conclusively proved. It added nothing in law to the force of the contract. In fact, the error must be deemed to have been beneficial rather than injurious to the defendant, since it left it to the jury to determine what the contract meant, or what the true contract was between the parties, when the court might have positively and peremptorily instructed the jury that it meant precisely what the plaintiff contended was the intention. Such an error under such conditions is not one for which a reversal of judgment would be justifiable.
[55]*55These considerations will serve to dispose of sixteen of the appellant’s forty-four assignments of error; namely, the first, second, third, fourth, fifth, sixth, seventh, eighth, fourteenth, fifteenth, seventeenth, eighteenth, twentieth, twenty-ninth, thirtieth and thirty-first — all of which are based on the admission in evidence of the oral and extraneous testimony adduced by the plaintiff.
But while the plaintiff’s testimony introduced for the purpose of explaining the written contract was inadmissible for that purpose, a large part of the testimony, to which exception seems to have been taken, was admissible to prove the amount of damage sustained by the plaintiff. In that category is included the testimony adduced to show the values of the several pieces of property conveyed by the defendant to the plaintiff and of the farm conveyed by the plaintiff to the defendant. And the deeds of the farm made subsequently by the appellant and by others who derive title from him were admissible for the same purpose, and for the purpose of showing that the defendant had placed it out of his power to reconvey the orchard lot, or to submit to a rescission of the contract. We find no error in the admission of any of this testimony. And, consequently, we must hold that the eleventh, twelfth and thirteenth assignments of error, which are based upon such admission, are without foundation in law.
The ninth and tenth assignments of error are trivial and unimportant, and do not seem to be seriously insisted on. The sixteenth and nineteenth assignments relate to questions propounded to the defendant’s witnesses in cross-examination intended to impeach their veracity, or, rather, to lay the foundation for such impeachment. We find no merit in any of these assignments, and need not give them further consideration.
Nineteen assignments of error are based on the granting of the four instructions given to the jury on behalf of the plaintiff, and the refusal of the fifteen instructions requested [56]*56on behalf of the defendant. Of these nineteen assignments of error, one, the twenty-fourth in the series, has reference to the second count in the declaration, and has already-been disposed of; and three, the twenty-ninth, thirtieth and thirty-first, which are founded upon three several instructions requested by the defendant with regard to the testimony introduced by the plaintiff to explain the written contract, have likewise been disposed of in our consideration of that testimony, and the admissibility of it. The refusal of these instructions, under the circumstances, could not have prejudiced the defendant.
3. As already stated, three instructions were given to the jury on behalf of the plaintiff with reference to the principal subject of controversy, the guarantee of the defendant to sell the property conveyed by him for not less than $17,000. Two of these were substantially to the effect that, if the jury should find the facts to be as claimed by the plaintiff, the latter was entitled to recover the difference between the value of the plaintiff’s farm conveyed to the defendant and the value of the defendant’s property conveyed to the plaintiff over and above the incumbrances on the latter, provided that such difference did not exceed $17,000. And the third instruction was to the effect that, if the jury found for the plaintiff, they might, in their discretion, allow interest on the amount found from a date not earlier than that of the filing of the declaration.
We find no error in these instructions. If the plaintiff was entitled to recover at all — and the facts entitling him to recover were more fully left to the jury than they should have been — the rule of damages was accurately stated. If there was any error in the instructions, it was one resulting from the introduction of the oral testimony. But this error, as we have already said, was one favorable to the defendant, inasmuch as it left to the jury to determine a point which might have been conclusively ruled as matter of law in favor of the plaintiff Theassignmentsnumbered twenty-one, [57]*57twenty-two and twenty-three, based on the granting of these instructions, must therefore fail.
4. Of the fifteen instructions requested by the defendant, all were refused; although one, the first, as modified by the court, was given. But the defendant did not consent to the modification. And upon these rulings by the court there were sixteen exceptions, the last being to the granting of the defendant’s first instruction as modified. This first instruction, as requested, was the expression of an abstract proposition of law, that the burden of proof was upon the plaintiff to establish his case by a preponderance of evidence; which, of course, might well be given to the jury in any case. But we fail to see wherein the qualification diminishes the force of the proposition; for the qualification is as well established as the main proposition and is equally applicable to the present case. The qualification is that the burden of proof is upon the plaintiff to establish by a preponderance of evidence the case presented by the allegations of his declaration, but that such allegations may be established by testimony presented on behalf of the defendant or by the defendant’s admissions, if the jury shall find such testimony or admissions. It is one abstract proposition superadded to another. We find no error in this action of the court, and no merit in the twenty-fifth' and fortieth assignments of error based upon it.
5. The second, third and fourth of the instructions requested by the defendant, and for the refusal of which he makes the twenty-sixth, twenty-seventh and twenty-eighth assignments of error, sought to instruct the jury that the plaintiff was not entitled to recover on the first count of the declaration unless he proved that he had fully performed all the things specified in the contract to be performed by him, such as the payment of taxes on the farm. But this clearly is not the law as applicable to this case. The contract sued on was not dependent upon any conditions to be performed by the plaintiff; and the defendant’s liability [58]*58upon it was wholly independent of any conditions imposed upon the plaintiff by other portions of the written agreement between the parties. If the failure of the plaintiff to pay the taxes on the farm was a fact, it was one to be shown by the defendant in diminution of the damages suffered by the plaintiff. Payment of such taxes Mras certainly not a condition precedent to the plaintiff’s recovery in this case.
6. The fifth, sixth and seventh instructions requested by the defendant, and constituting the basis of his twenty-ninth, thirtieth and thirty-first assignments of error, have reference to the construction of the contract and the oral testimony admitted in explanation of it. We think that they have already been sufficiently considered in connect tion with the question of the admission of that testimony.
7. The eighth, ninth, tenth and eleventh instructions requested by the defendant, and for the refusal of which he has assigned the thirty-second, thirty-third, thirty-fourth and thirty-fifth assignments of error, sought to relieve the defendant from liability on the ground that no time was limited in the contract for the performance of this covenant or guarantee by the defendant. These instructions were very properly refused, for the reason that the defendant had had a reasonable time before the institution of the suit for compliance with his covenant.
There is testimony to show that he had been repeatedly requested by the plaintiff to perform it and that he had not done so, and apparently had no intention to do so. And with reference to the twelfth instruction asked by the defendant, which is also proper to be considered in this connection, and which is to the effect that the defendant is not liable if the plaintiff notified the defendant that he (the plaintiff) would not sell the property conveyed to him for $17,000, it does not appear that there is any testimony in the record upon which to base such an instruction. The instruction, therefore, was properly refused; and the thirty-sixth assignment of error founded upon it must fail.
[59]*598. By the thirteenth instruction requested, the defendant sought to have the jury told that there was no evidence to show that the plaintiff had suffered any damage; by the fourteenth instruction, that the plaintiff had not alleged any damage to himself by the breach of the agreement, and, therefore, could recover only nominal damages; and by the fifteenth instruction, that on the evidence the plaintiff vas not entitled to recover at all on the first count of the declaration. We find nothing in the record to warrant any one of these instructions. We think there was abundant evidence to go to the jury which tended to show that the plaintiff had suffered damage by the failure of the defendant to perform his guarantee. As to the claim that the allegation of the plaintiff’s declaration only justified nominal damages, it appears that the declaration is in the usual form of declarations in covenant; that it sets forth the covenant fully and alleges the violation of it by the defendant, and that it claims that the plaintiff has been damaged to the amount of $17,000. We fail to see wherein this allegation was insufficient. The amount and nature of the damage sustained were matter of proof, and there was no necessity for specification of them in the declaration.
9. The action of the. court in overruling the defendant’s motion in arrest of judgment is made the ground of four assignments of error, one for each reason stated in the motion. There are, in fact, five reasons stated in the motion, but the fifth is a duplication of the first, and neither one can be considered by us, since it is merely “for errors and defects apparent on the face of the record.” This is too general. The second ground for the motion is that the plaintiff has not sufficiently set forth in the declaration how he has been damaged; the third is that only nominal damages should have been allowed by the jury, and the fourth is that the verdict of the jury should have specified how much they allowed on each count of the declaration.
[60]*60The second and third of these grounds have been sufficiently considered in connection with the thirteenth and fourteenth instructions asked by the defendant and refused. With reference to the fourth ground, it is sufficient to say that it is contrary to all precedent in the District of Columbia. There is neither law nor practice in this District which requires that when two or more counts are combined in one declaration the verdict of the jury must be separate upon each count. A separate verdict upon each count may be directed by the court in such cases, if the circumstances require or justify it; but, unless the jury are so directed, it is not ground for arresting the judgment that the jury ■ has conformed to the uniform practice and has rendered one entire verdict upon the declaration as a whole.
From what we have said, it follows, in our opinion, that none of the appellant’s assignments • of error are well founded in point of law, except those based on the admission of oral and extraneous evidence to explain the written contract, and that the error in this regard is not error prejudicial to the defendant which would justify a reversal of the judgment. We think that the judgment appealed from should be affirmed, with costs. And it is so ordered.