PARDEE, Circuit Judge.
The statement of facts found on the first 12 pages of the brief filed by plaintiff in error is expressly approved and adopted by the defendant in error, and therefore may be accepted as a correct statement of the case.
The plaintiff in epror relies upon the following assignments of error for a reversal of this case:
(1) That upon the trial of said cause the court erred in excluding from the jury the evidence of George B. Zimpelman, defendant, upon the objections of plaintiff.
(2) The court erred in excluding from the jury the evidence of George Zimpelman, Jr., upon objections by the plaintiff.
(3) The court erred in instructing the jury to return a verdict for the plaintiff, R. J. Hipwell, for the amount of the note sued on.
(4) The court erred in overruling the motion for a new trial made by the defendant, George B. Zimpelman.
1. In support of this assignment, counsel for plaintiff in error claims that it is a well-settled rule at common law that proof may be used to contradict or vary the consideration recited in a deed or written contract; that in this case, the deed and note sued on forming a part of the more comprehensive transaction, the terms of which are not attempted to be expressed in writing, parol testimony as to such parts of the transaction as were not reduced to writing is admissible; that a total failure of consideration will avoid a commercial instrument resting upon it as completely as an original want of consideration; and that the failure to give a good title to land or personal property, which has been sold, ⅛ always a good defense, and, if the entire title fails, it will be a total failure; otherwise, only a partial failure. The correctness of these propositions may be safely admitted, but a reference to the bill of exceptions shows that the evidence of George B. Zimpelman, defendant, so far as it is affected by said propositions, was not excluded, but was only excluded in so far as it was offered by defendant to show (a) that Hipwell only owned a one-half interest in the mine at the time of the execution of the deed; and (b) that there was a contemporaneous agreement by which Hipwell was to secure a one-fourth interest in the mine from one.Moler for the defendant, and convey the same, or cause the same to be conveyed, to the defendant.
[853]*853(a) The answer of the defendant pleads a total failure of consideration by reason of an alleged eviction, but admits that, at the time of making the contract of sale of the three-fourths interest in the mine, the said Hipwell “represented and claimed to own one-half interest in said mine, and represented to defendant that he also had an option to purchase from Moler Ms one-fourth interest in said mine. Defendant further says that relying in full confidence upon the representations of said plaintiff, as aforesaid, that he did in fact own and have title to one-half interest in said mine, and that he would procure and pay for Moler’s one-fourth interest in said mine, so as to make defendant a perfect title to said three-fourths interest in said mine, this defendant was induced to purchase, and did pur citóse, the three-four tl is interest in said mine, and in consideration therefor said defendant paid the money aforesaid, and executed said promissory note, to said plaintiff.” The answer does not charge any fraud on the part of plaintiff, Hipwell, but seems to base the defense in regard to the one-l'oorth interest solely upon the failure of Hipwell to acquire the same frota. Moler. So far as the bill of exceptions shows, no legal proof showing an eviction from the property, in whole or in part, lias been offered. The rejected evidence, if admitted, could only hare tended to show a partial failure of consideration. In Greenleaf v. Cook, 2 Wheat. 13, relied upon by defendant in error, it was held that, where a promissory note was given for the purchase of property, the failure of consideration through defect of title must be total, in order to constitute a good defense to an action at law on the note; but in Withers v. Green, 9 How. 213, reaffirmed in Van Buren v. Digges, 11 How. 476, it was determined that, in an action on a, promissory note between the original parties, (in order to avoid circuity of action, mainly,) a partial failure of consideration, may he set up as a defense pro tanto. The rule declared in the supreme court of Texas in regard to failure of consideration in whole or In part, pleaded by a purchaser under an executed contract, is found in Price v. Blount, 41 Tex. 472, as. follows:
“Where the purchaser holds under an executed contract, as a deed with warranty, he cannot resist the payment of the purchase money on proof that the title may be doubtful. lie must do more. He must show with reasonable certainty that the title has failed, in whole or in part, and that ho lias been evicted, or, if not, that he is liable to be evicted, by a superior outstanding title, of which, he had no notice at the time of his purchase;” citing Cooper v. Singleton, 19 Tex. 266; Woodward v. Rodgers, 20 Tex. 178; Johnson v. Long, 27 Tex. 21; Demaret v. Bennett, 29 Tex. 263.
The contract between Hipwell and Zimpehcan. was executed. Zimpelman was put in possession of the properly, and he admits that sit the time of purchase he knew oí the outstanding title of Moler to one fourth of the same, and he produces no legal evidence of any eviction.
(b) The terms of the contract of sale between the parties were reduced to writing, so far as the obligation to pay, the stipulations of Hipwell to sell and convey, and the thing to he sold and conveyed, were concerned; and they duly appear in the note sued on, and in the deed found in the 'record, which’ deed reads as follows:
[854]*854“Know all men by tb,ese presents, that I, R. J. Hipwell, of San Diego, California, for and in consideration of tlie sum of one thousand dollars, ($1,000.00,) lawful money of the United States, in hand paid me, the receipt of which is hereby acknowledged, do by these presents, grant, bargain, sell, and convey unto George B. Zimpelman, his lioirs and assigns, all my right, title, and interest in and to the El Señor mine, situated at Almo, L. C., the same being a three-fourths of the whole; and 1 expressly hereby agree with Geo. B. Zimpelman that, should I purchase the other one-fourth interest in said mine, that I will not demand any portion of the profits of said mine until all debts against same are paid, including the amount paid me for my present three-fourths interest.
[Signed] ' “It. J. Hipwell. [Seal.]
“Witnesses:
“W. L. Maury, Jr.
“W. V. Steagall.”
The said promissory note and deed being in evidence, parol testimony was not admissible to contradict or vary the terms of the deed, nor to show a contemporaneous parol agreement between the parties respecting the property to be conveyed, nor to establish a 'covenant for further assurance on the part of the plaintiff, Hipwell. 1 Greenl. Ev. § 225; Railroad Co. v. Garrett, 52 Tex. 139. And authorities might be multiplied indefinitely. We conclude, therefore, that the ruling complained of in the first assignment of error was correct.
2.
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PARDEE, Circuit Judge.
The statement of facts found on the first 12 pages of the brief filed by plaintiff in error is expressly approved and adopted by the defendant in error, and therefore may be accepted as a correct statement of the case.
The plaintiff in epror relies upon the following assignments of error for a reversal of this case:
(1) That upon the trial of said cause the court erred in excluding from the jury the evidence of George B. Zimpelman, defendant, upon the objections of plaintiff.
(2) The court erred in excluding from the jury the evidence of George Zimpelman, Jr., upon objections by the plaintiff.
(3) The court erred in instructing the jury to return a verdict for the plaintiff, R. J. Hipwell, for the amount of the note sued on.
(4) The court erred in overruling the motion for a new trial made by the defendant, George B. Zimpelman.
1. In support of this assignment, counsel for plaintiff in error claims that it is a well-settled rule at common law that proof may be used to contradict or vary the consideration recited in a deed or written contract; that in this case, the deed and note sued on forming a part of the more comprehensive transaction, the terms of which are not attempted to be expressed in writing, parol testimony as to such parts of the transaction as were not reduced to writing is admissible; that a total failure of consideration will avoid a commercial instrument resting upon it as completely as an original want of consideration; and that the failure to give a good title to land or personal property, which has been sold, ⅛ always a good defense, and, if the entire title fails, it will be a total failure; otherwise, only a partial failure. The correctness of these propositions may be safely admitted, but a reference to the bill of exceptions shows that the evidence of George B. Zimpelman, defendant, so far as it is affected by said propositions, was not excluded, but was only excluded in so far as it was offered by defendant to show (a) that Hipwell only owned a one-half interest in the mine at the time of the execution of the deed; and (b) that there was a contemporaneous agreement by which Hipwell was to secure a one-fourth interest in the mine from one.Moler for the defendant, and convey the same, or cause the same to be conveyed, to the defendant.
[853]*853(a) The answer of the defendant pleads a total failure of consideration by reason of an alleged eviction, but admits that, at the time of making the contract of sale of the three-fourths interest in the mine, the said Hipwell “represented and claimed to own one-half interest in said mine, and represented to defendant that he also had an option to purchase from Moler Ms one-fourth interest in said mine. Defendant further says that relying in full confidence upon the representations of said plaintiff, as aforesaid, that he did in fact own and have title to one-half interest in said mine, and that he would procure and pay for Moler’s one-fourth interest in said mine, so as to make defendant a perfect title to said three-fourths interest in said mine, this defendant was induced to purchase, and did pur citóse, the three-four tl is interest in said mine, and in consideration therefor said defendant paid the money aforesaid, and executed said promissory note, to said plaintiff.” The answer does not charge any fraud on the part of plaintiff, Hipwell, but seems to base the defense in regard to the one-l'oorth interest solely upon the failure of Hipwell to acquire the same frota. Moler. So far as the bill of exceptions shows, no legal proof showing an eviction from the property, in whole or in part, lias been offered. The rejected evidence, if admitted, could only hare tended to show a partial failure of consideration. In Greenleaf v. Cook, 2 Wheat. 13, relied upon by defendant in error, it was held that, where a promissory note was given for the purchase of property, the failure of consideration through defect of title must be total, in order to constitute a good defense to an action at law on the note; but in Withers v. Green, 9 How. 213, reaffirmed in Van Buren v. Digges, 11 How. 476, it was determined that, in an action on a, promissory note between the original parties, (in order to avoid circuity of action, mainly,) a partial failure of consideration, may he set up as a defense pro tanto. The rule declared in the supreme court of Texas in regard to failure of consideration in whole or In part, pleaded by a purchaser under an executed contract, is found in Price v. Blount, 41 Tex. 472, as. follows:
“Where the purchaser holds under an executed contract, as a deed with warranty, he cannot resist the payment of the purchase money on proof that the title may be doubtful. lie must do more. He must show with reasonable certainty that the title has failed, in whole or in part, and that ho lias been evicted, or, if not, that he is liable to be evicted, by a superior outstanding title, of which, he had no notice at the time of his purchase;” citing Cooper v. Singleton, 19 Tex. 266; Woodward v. Rodgers, 20 Tex. 178; Johnson v. Long, 27 Tex. 21; Demaret v. Bennett, 29 Tex. 263.
The contract between Hipwell and Zimpehcan. was executed. Zimpelman was put in possession of the properly, and he admits that sit the time of purchase he knew oí the outstanding title of Moler to one fourth of the same, and he produces no legal evidence of any eviction.
(b) The terms of the contract of sale between the parties were reduced to writing, so far as the obligation to pay, the stipulations of Hipwell to sell and convey, and the thing to he sold and conveyed, were concerned; and they duly appear in the note sued on, and in the deed found in the 'record, which’ deed reads as follows:
[854]*854“Know all men by tb,ese presents, that I, R. J. Hipwell, of San Diego, California, for and in consideration of tlie sum of one thousand dollars, ($1,000.00,) lawful money of the United States, in hand paid me, the receipt of which is hereby acknowledged, do by these presents, grant, bargain, sell, and convey unto George B. Zimpelman, his lioirs and assigns, all my right, title, and interest in and to the El Señor mine, situated at Almo, L. C., the same being a three-fourths of the whole; and 1 expressly hereby agree with Geo. B. Zimpelman that, should I purchase the other one-fourth interest in said mine, that I will not demand any portion of the profits of said mine until all debts against same are paid, including the amount paid me for my present three-fourths interest.
[Signed] ' “It. J. Hipwell. [Seal.]
“Witnesses:
“W. L. Maury, Jr.
“W. V. Steagall.”
The said promissory note and deed being in evidence, parol testimony was not admissible to contradict or vary the terms of the deed, nor to show a contemporaneous parol agreement between the parties respecting the property to be conveyed, nor to establish a 'covenant for further assurance on the part of the plaintiff, Hipwell. 1 Greenl. Ev. § 225; Railroad Co. v. Garrett, 52 Tex. 139. And authorities might be multiplied indefinitely. We conclude, therefore, that the ruling complained of in the first assignment of error was correct.
2. The testimony of George Zimpelman, Jr., was objected to by the plaintiff as not competent to establish a legal eviction from the mine, and for the further reason that, .if the defendant was evicted by virtue of any legal or judicial order, a certified copy of the same, duly authenticated, should be proved, and the record should.be proven, as the law requires. The defendant, in order to maintain his defense, was bound to show a legal eviction, (Westrope v. Chambers, 51 Tex. 188,) and to that end parol evidence is not admissible, (1 Greenl. Ev. §§ 501, 514.) This assignment of error is not well taken.
3. We think the court properly instructed the jury to find a verdict for the plaintiff. From the evidence in the case, the defendant did not show with reasonable certainty, by proper evidence, that the title to the property purchased had failed, either in whole or in part, nor that he had been evicted, or was liable to be evicted, by a superior outstanding title, of which he had no notice at the time of purchase. See Price v. Blount, supra.
4. Motions for a new trial are within the discretion of the trial court, and refusals to grant the same cannot be reviewed upon writ of error.
From a careful review of the whole case, and'an examination of all the points and authorities urged by the plaintiff in error, we do not find any error in the proceedings, warranting a reversal of the judgment rendered in the court below; and it is therefore affirmed, with costs.