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operation upon the rights of parties, which was in itself wholly unreasonable. In relation to a law, properly enacted, this inquiry cannot be made in a country where the judicial and legislative powers are properly separated. But in reference to custom, which is a quasi law, and has often the effect of law, but has not its obligatory power over the court, the character of the custom will be considered; and if it be altogether foolish, or mischievous, the court will not regard it; and if a contract exist which only such a custom can give effect to, the contract itself will be declared void.

Lastly, it must be remembered that no custom, however universal, or old, or known, unless it has actually passed into law, has any force over parties against their will. Hence, in the interpretation of contracts, it is an established rule, that no custom can be admitted which the parties have seen fit expressly to exclude. Thus, to refer again to the custom of allowing grace on bills and notes on time, there is no doubt that the parties may agree to waive this; and even the statutes which have made this custom law, permit this waiver. And not only is a custom inadmissible which the parties have expressly excluded, but it is equally so if the parties have excluded it by a necessary implication; as by providing that the thing which the custom affects shall be done in a different way. For a custom can no more be set up against the clear intention of the parties than against their express agreement; and no usage can be incorporated into a contract which is inconsistent with the terms of the contract.

Where the terms of a contract are plain, usage, even under that very contract, cannot be permitted to affect materially the construction to be placed upon it; but when it is ambiguous, a long-continued usage may influence the judg ment of the court, by showing how the contract was understood by the parties to it.



It is very common for parties to offer evidence external to the contract in aid of the interpretation of its language. The

general rule is, that such evidence cannot be admitted to cun tradict or vary the terms of a valid written contract; or, as the rule is expressed by writers on the Scotch law, "writing cannot be cut down or taken away by the testimony of witnesses." The rule is often expressed with sufficient exactness for ordi nary purposes, in this way: "Evidence may be admitted to ex plain a written contract, but not to contradict it." There are many reasons for this rule. One is, the general preference of the law for written evidence over unwritten; or, in other words, for the more definite and certain evidence over that which is less so; a preference which not only makes written evidence better than unwritten, but classifies that which is written. For if a negotiation be conducted in writing, and even if there be a distinct proposition in a letter, and a distinct assent, making a contract, and then the parties reduce this contract to writing, and both execute the instrument, this instrument controls the letters, and they are not permitted to vary the force and effect of the instrument, although they may sometimes be of use in explaining its terms. Another is, the same desire to prevent fraud which gave rise to the statute of frauds; for as that statute requires that certain contracts shall be in writing, so this rule refuses to permit contracts which are in writing to be controlled by merely oral evidence. But the principal cause alleged in the books and cases is, that when parties, after whatever conversation or preparation, at last reduce their agreement to writing, this may be looked upon as the final consummation of their negotiation, and the exact expression of their purpose. And all of their earlier agreements, though apparently made while it all lay in conversation, which is not now incorporated into their written contract, may be considered as intentionally rejected. The parties write the contract when they are ready to do so, for the very purpose of including all that they have finally agreed upon, and excluding everything else, and making this certain and permanent. And if every written contract were held subject to enlargement, or other alteration, according to the testimony which might be offered on one side or the other as to previous intention, or collateral facts, it would obviously be of no use to reduce a contract to writing, or to attempt to give it certainty and fixedness in any way.

It is nevertheless certain, that some evidence from without must be admissible in the explanation or interpretation of every contract. If the agreement be, that one party shall convey to the other, for a certain price, a certain parcel of land, it is only by extrinsic evidence that the persons can be identified who claim or are alleged to be parties, and that the parcel of land can be ascertained. It may be described by bounds, but the question then comes, where are the streets, or roads, or neighbors, or monuments referred to in the description; and it may sometimes happen that much evidence is necessary to identify these persons or things. Hence, we may say, as the general rule, that as to the parties or the subject-matter of a contract, extrinsic evidence may and must be received and used to make them certain, if necessary for that purpose. But as to the terms, conditions, and limitations of the agreement, the written contract must speak exclusively for itself. Hence, too, a false description of person or thing has no effect in defeating a contract, if the error can be distinctly shown and perfectly corrected, by other mat ter in the instrument.

A written contract, of which the memorandum satisfies the statute of frauds, is open to evidence to show that certain essentials of the actual contract are not in the memorandum, if the effect of the evidence is, not to vary the written contract, but to show that no such contract was ever made.

Recitals in an instrument may sometimes be qualified or contradicted by extrinsic evidence; by "recitals" are meant the narrative of the circumstances or purposes which have induced the parties to make the contract. So the date of an instrument, or if there be no date, the time when it was to take effect, which may be other than the day of delivery; or the amount of the consideration paid, may be varied by testimony; but if a note given for land is sued, the promisor cannot show in defence that the deed described a less quantity of land than had been stipu lated. And an instrument may be shown to be void and with. out legal existence or efficacy, as for want of consideration, or for fraud, or duress, or any incapacity of the parties, or any illegality in the agreement. In the same way, extrinsic evi dence may show a total discharge of the obligations of the con

tract; or a new agreement substituted for the former, which it sets aside; or that the time when, or the place where, certain things were to be done, had been changed by the parties; or that a new contract, which was additional and supplementary to the original contract, had been made, or that damages had been waived, or that a new consideration, in addition to the one mentioned, has been given, if it be not adverse to that named in the deed. And if no consideration be named, one may be proved.

We have already said that a receipt for money is peculiarly open to evidence. It is only primâ facie evidence either that the sum stated has been paid, or that any sum whatever was paid. It is in fact not regarded as a contract, and hardly as an instrument at all, and has but little more force than the oral admission of the party receiving. But this is true only of a simple receipt. It often happens that a paper which contains a receipt, or recites the receiving of money or of goods, contains also terms, conditions, and agreements, or assignments. Such an instrument, as to everything but the receipt, is no more to be affected by extrinsic evidence than if it did not contain the receipt; but as to the receipt itself, it may be varied or contra dicted by extrinsic testimony, in the same manner as if it contained nothing else.

Lastly, no contract will be enforced, as a contract, if it have no plain and natural or legal meaning, by itself; and if admissible, extrinsic evidence can only show that the intention of the parties was one which their words do not express. But the supposed contract being set aside for such reasons as these, the parties will be remitted to their original rights and obligations.





This right may arise from and rest upon possession, inheritance, purchase, or hiring.

I. POSSESSION.—If the farmer or they from whom he inherits have possessed the land without disturbance or adverse claim for a sufficient number of years, it is his by what is called prescription. The meaning of this is, that the law does not allow any adverse claimant to set up an old and stale claim to the farm, and on the strength of it deprive a man of property which he has held in peace for a long period. This law was founded upon the probability that they who have held quiet possession of land for a long time must have held it by right; and that no one would be likely to lie by and make no claim to the land if he had a good title to it. Ages ago, the period required to give title by mere lapse of time was a very long one. Gradually it became shorter, and is now in this country quite short. Exceptions to the rule are always made in favor of those who by reason of absence, infancy, or imbecility have been unable to assert their claims the principle being that no one should lose his land by suffering another to possess it quietly for a long time but he who could have made claim, and was therefore properly pun. ished for his neglect.

In Chapter 22, on limitations, and in the abstract of the statutes of limitations, beginning on page 284, the reader will find stated the periods of time within which, in the several States, an action must be brought to recover real estate-that is, land. If brought afterwards, the lapse of time is a sufficient defense, unless the plaintiff who seeks to recover the land can justify his delay in bringing his suit by showing that he or she was an infant, or absent from the State, or imbecile, or a married woman, or under some other disability; and that he or she

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