¶1Opinion of the Court by
¶2We are of the opinion that upon the appeal to the circuit court, as the action should there have been tried anew, the defendant should have been allowed to put in any sufficient defense, as if the suit had been brought originally in that court. (Civil Code, section 849.)
¶3But if the answer tendered by the defendant presented no defense to the action, the court might have refused to allow it to be filed, or afterwards exclude it on motion of the plaintiff.
¶4The correctness of the judgment in this case, therefore, depends on the question whether the answer presented a sufficient defense to the action. It seems to ns that it did not.
¶5The parol agreement set up is inconsistent with the written contract, and the answer does not allege fraud or mistake in the execution of the note, or- any sufficient reason why it should not be taken as expressing the contract. It is well settled that a written contract' unimpeached, cannot be controlled or modified by a simultaneous and contradictory parol agreement. (Hubble vs. Murphy, 1 Duvall, 278.)
¶6This court has repeatedly decided that a hirer of a slave was not entitled to an abatement of the stipulated price in a case like *418this, for loss of the service of the slave by his enlistment in the army.
¶7Wherefore, the judgment is affirmed.