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Parol evidence admissible to show situation of parties to contract and meaning of terms used. The case of Christie v. Burnett, 10 O. R. 609 (1886), follows the English case of Newell v. Radford, L. R. 3 C. P. 52 (1867), in which the relative situations of the parties as vendor and purchaser were ascertained by parol evidence of the occupations of the parties, from which it was inferred that one would be buying and the other selling. Armour, J., said: "Parol "evidence is always admissible to show the situation of the "parties at the time the writing was made, the circum"stances under which it was made, the time when it was made, and the relative trades of the respective parties. We have thus the fact that the plaintiff was a "manufacturer of mill machinery, and the defendant a "saw miller, and the inference is deducible from their rela"tive trades that the plaintiff was the seller and the defendant the purchaser." Parol evidence was also held admissible to show what the "work" was that one of the letters referred to, which was to be pushed on with all haste. The term " rig was also interpreted by the use of parol evidence.

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Evidence to identify party indicated in memorandum distinguished from evidence to show with whom contract made. The English case of Williams v. Jordan, 6 Ch. D. 517, shows that the memorandum must indicate who are the parties to the contract, and although where the parties are indicated parol evidence may be given to identify them. In the case of White v. Tomalin, 19 O. R. 513, it was held that the memorandum was defective where it did not show to whom the offer was made which afterwards became a contract. Boyd, C., said: "Evidence may be given to identify one of the parties named or described in the memorandum "of the bargain, but not to supply information in that "regard," and he mentions the cases of Wilmot v. Stalker, 2 O. R. 78, and Richard v. Stillwell, 8 O. R. 511, as cases in which he had had occasion to explore this branch of the law. Oral evidence to construe memorandum. In Reid v. Smith, 2 O. R. 69 (1882), the memorandum was of a sale of timber limits, Nos. 1 and 3, North Shore Nipissing, for the sum of $15.500;" also all the plant used in connection with the shanty now in operation on Limit No. 1, included in the

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"list made out last summer," etc., etc. It was held that this memorandum sufficiently described the plant, which could be easily identified by parol evidence, as being that specifically described in a certain writing which accompanied the contract, and which was signed in the firm's name and by the purchaser. The further point would seem from the headnote to have been decided that, although the memorandum would import prima facie a down payment of the $15,500, parol evidence could be given of the terms of credit to be allowed; but it appears from the judgment that the terms of credit were set forth in memoranda put in evidence signed by the defendant firm.

Parol evidence of warranty prior to written contract. The introduction of parol evidence of terms not included in the written contract of sale raises a difficult question, the general principles with reference to which are matters for treatment under the law of evidence. The rule is stated in the text at page 119.

In Northey Manufacturing Company v. Sanders, 31 O. R. 475 (1898), the contract was for the sale of a gasoline engine, with a pump standard. The quality and standard of the engine were fully described in the written memorandum of sale, and there was a condition for a trial by the purchaser, with written notice in the event of its being unsatisfactory, whereupon the purchaser should have the right to a new engine unless the defects could be remedied. The purchaser was allowed at the trial to give evidence of a conversation previous to the making of the contract, in which the agent had represented that the engine would, when attached to the pump which was used, pump water sufficient to supply 250 head of cattle, and the jury were told that if they believed this story, the vendors could not recover, and the purchaser would be entitled to damages on his counter-claim. The court held that this evidence had been improperly admitted. Per Street, J.: "The sale, "was of a specific article, by description, and the contract "must be taken to cover the whole contract between the "parties. The article which the plaintiffs undertook to "deliver was a one-horse-power gasoline engine, with pump standard, and it is not pretended that the article supplied does not answer this description." The negotia

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tions preceding the making of the contract could not be introduced for the purpose of adding to the terms included in the writing.

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Parol evidence to vary writing. In Wilson et al v. Windsor Foundry Co., 31 S. C. R. 381, the plaintiffs doing business in Montreal sold a lot of machinery to the defendants, doing business in Windsor, Nova Scotia. The business was transacted through plaintiff's agent, and the order signed by defendant was in the form, "Please furnish one fifty"horse-power engine, for which we agree to pay you $350, "delivered in Halifax. Shipment to be made as soon as possible." Defendants were allowed to set up a parol agreement that the machine was to be paid for not in cash, but by a set-off of a crusher which they supposed the plaintiffs owed them for, plaintiffs doing business under the same name as a Toronto firm to which they had sold a crusher. The Supreme Court of Nova Scotia was equally divided on the question as to the admission of the parol evidence, but the Supreme Court of Canada was unanimous in holding that it had been properly received.

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Variance between bought and sold notes. In an action on a contract for the sale of wheat by bought and sold notes, it appeared that the sold note made the wheat deliverable at Montreal afloat" on arrival during the first half "of August next," vessel to be named (meaning by the seller), while the bought note made it deliverable "during "first half of August next at seller's option." This was held to be a material variance, which avoided the contract. By the seller's note, he was to deliver the cargo whenever "it arrived in the first half of August. By the buyer's "note, the delivery was to be whenever the seller chose "in the first half of August. It appears to us these are "two very different things. Which of the two writings, "then, can be said to contain and to express the bargain? "The two instruments together are required to form a "perfect agreement. When they differ in a material "respect the result is, there is no contract." Butters v. Glass, 31 U. C. Q. B. 379 (1871.)

CHAPTER V.

OF BROKERS, THEIR BOOKS AND NOTES, AND THEIR AUTHORITY TO SIGN A MEMORANDUM OF A CONTRACT.

It is well settled that a broker for sale is an agent, having the authority of both parties to sign a memorandum of the bargain so as to make the contract good against each.

A broker for sale is a person making it a trade to find buyers for those who wish to sell and sellers for those who wish to buy, and to negotiate and superintend the making of the bargain between them. So far it is clear, that it is for the interest of each party that the broker should discharge his duty effectually. It does not matter which party was the first to employ the broker, the benefit of finding a customer, coming to an understanding with him, and having the contract effectually made is the same for each party. There is, therefore, nothing in the nature of his employment to prevent the broker acting for both parties to this extent.

But in practice he who employs a broker very often gives him a discretion as to the terms on which he is to sell or buy, and when this is the case the broker has to promote an interest hostile to that of the other side. The seller seeks to sell dear, the buyer to buy cheap, and it would be a fraud in the broker to undertake to promote at once these opposite interests; the broker, therefore, cannot act as agent for both parties in settling any of the terms of the contract, unless both parties agree to submit to him as umpire on some point. But though, in exercising any discretion as to the terms of the contract, the broker must be agent for one party exclusively, there is nothing to prevent his still being agent for both parties on those points where their interests are the The broker who is trusted to sell at the best price he can get, must be the seller's agent, and his only, in settling

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