The opinion of the court- was delivered by
Valentine, J.:
This was an action brought by Jeh'il Anderson against O. H. P, Polk and John W. Polk, for taking care of and feeding 203 head of cattle from December 22d 1873 to March 22d 1874. We do not think -that the issues in the court below were what the plaintiffs in error (defendants below) now seem to claim them to have been. The case was certainly not tried in the court below as though such were the issues, but was tried upon a very different theory. By the original contract between Anderson and the Polks, Anderson was to receive as compensation for taking care of and feeding said cattle, from December 22d 1873 until July 10th 1874, five cents for each pound which each steer (for they were all Texas steers) should at the end of that time weigh over and above eight hundred and fifty *246pounds. Afterward, and on March 4th 1874, this contract was superseded, as both parties admit, by another contract, under which second contract the Polks received back all of said cattle except 100 head. The Polks claim that said original contract was superseded by a contract wholly in writing. Anderson claims that it was not. This issue we think was sufficiently raised by the pleadings; and the whole case was tried in the court below upon the theory that this question was put in issue by the pleadings. It is admitted by the pleadings that at the time said second contract was made the following written instrument was executed, to-wit:
“This agreement, signed and delivered this 4th day of March 1874, witnesseth; that whereas, we have become satisfied we cannot carry out and fulfill our contract made and entered into with John W. Polk and O. H. P. Polk on the 22d December 1874 about feeding their cattle, we therefore hereby agree to release to them all but 100 head of heaviest of steers, which we agree to take at 1,000 pounds each, and feed according to our original contract at five cents per pound for all they may gain by the first of July next. Witness our hands. Tempy Anderson.
Jehil Anderson.”
The Polks claim that this embodied the whole of the second contract, and that by virtue of it Anderson was to have nothing for feeding said 203 head of cattle from December 22d 1873 to March 4th 1874. Anderson on the contrary claims that this did not embody the whole of said second contract; but by virtue of the terms of said second contract, as it was in fact made, he was to receive as compensation for feeding said cattle from December 22d to March 4th what was reasonable and right, to-wit: he was to receive compensation for the admitted gain of the 100 head which he was to keep after March 4th, and reasonable compensation for feeding and taking care of the others, less what the Polks had already paid him. This, the pleadings as well as the evidence show. But the question arises, could Anderson show this, either by the pleadings or the evidence, after he had admitted the execution of said written instrument? We think he could. *247It would not tend to vary or contradict the terms of said written instrument. Said written instrument evidently does not contain the whole of the contract as made by the parties. It does not show what the Polks agreed to do. All that they agreed to do rests wholly in parol. They admit that they agreed to receive the cattle which Anderson released; and to dispense with said original contract; but this is not shown by’said written instrument. It rests wholly in parol. And why may not the balance of Polks’ agreement, as claimed by Anderson, rest .in parol? The written instrument does not pretend to show that Anderson was to receive no compensation for his care and feed furnished to the cattle prior to March 4th. And Anderson claims that the Polks agreed that he should. Besides, it is shown both by the pleadings and Anderson’s evidence that Anderson is an illiterate man, that he cannot read, that he relied upon the statements of the Polks, or rather upon the statements of Polks’ agents, as to what said written instrument contained, and that, from such statements he believed at the time he authorized his name to be signed to said written instrument that it contained all that he now claims was included in said second contract as it was in fact made by the parties. But, however said written instrument might be construed, still the verdict should have been for Anderson and against the Polks for some amount; for, taking the second contract as the Polks claim that it was, they violated even it. They drove away said 100 head of cattle on March 20th without the consent of Anderson. This substantially disposes of this case in this court. It is wholly unnecessary to discuss the points made, that the verdict is against the evidence, or is excessive, for it is certainly not more so than numerous verdicts which this' court has already sustained.
The plaintiffs in error also moved for a new trial because of newly-discovered evidence. Now so far as the newly-discovered evidence was relevant and competent, it was merely cumulative, and we think by the exercise of reasonable diligence it could have been obtained for the trial. The *248testimony of Ira Allison would have been merely cumulative. It would have had scarcely any weight in the case, and 'probably by the exercise of the slightest diligence it could have been procured. It would seem from the evidence that Allison was a half-witted boy; that he came to Paola, and into the court-room, without a subpoena, for the purpose of testifying for the Polks; that some of the witnesses for Anderson, and one of the bailiffs of the court, played what they considered a practical joke upon him, and scared him out of town. Now this conduct may have been reprehensible, but the plaintiff Anderson was not responsible for it. He knew nothing of it till after the trial.
We think there was no error or irregularities in any of the proceedings that would authorize a reversal of the judgment below.
The judgment will therefore be affirmed.
All the Justices concurring.