CH. V. s. 12. place of loading, the cost of pressing wool was to be borne by Construction the shipowner (h). of Contracts (Admissibility of Parol Evidence). Subject matter uncertain. Date. When admissible to add to a written contract. When not. So, if the subject-matter of the written contract be uncertain, oral evidence is admissible for the purpose of identifying it. E.g., where the defendant, by a contract in writing, purchased of the plaintiffs a quantity of wool, which was described in the contract as "your wool: it was held that evidence of a previous conversation between the parties might be given, for the purpose of showing what they meant by the term "your wool" (i). So parol evidence is admissible, to prove that a deed or other written instrument was not executed on the day on which it bears date (k). And it has been held that, where a written instrument has no date, parol evidence may be given to show from what time it was intended to operate (1). It has been suggested (m), that parol evidence would probably be admissible, to supply a blank in an agreement not falling within the Statute of Frauds: as if a written bargain were made for the sale of goods under 10l., leaving a blank for the quantity to be delivered. Nor does it seem that there could be any objection to this; because, until the quantity of goods to be sold was stated in some way, there would be no contract at all; so that the rule of which we are now treating would not be infringed. Indeed, in a case where the defendant ordered goods by letter, which did not mention the time for payment, and the plaintiff sent the goods and an invoice: it was held that, the letter not being a valid contract within the Statute of Frauds, parol evidence was admissible to show that the goods were supplied on credit (n). But if the contract of the parties be once reduced into writing, then the rule applies; and whether it be a contract which is required by the Statute of Frauds to be in writing or not, verbal evidence is not allowed to be given of what passed between the parties, either before the written instrument was made, or during the time that it was in a state of preparation, so as to add to, or substract from, or in any manner to vary or qualify the written contract (0). Thus, if a written demise be silent as to ground (h) Cockburn v. Alexander (1848), 6 C. B. 791. (i) Macdonald v. Longbottom (1860), 1 E. & E. 978, 987, Ex. Ch. And see Birch v. Depeyster (1816), 4 Camp. 385; Ellis v. Thompson (1838), 3 M. & W. 445. (k) See Jayne v. Hughes (1854), 10 (1) Davis v. Jones (1856), 17 C. B. 625. 93. (n) Lockett v. Nicklin (1818), 2 Exch. (0) Eden v. Blake (1845), 13 M. & W. 614, 617, 618; per Parke, B., Lockett v. Nicklin (1848), 2 Exch. 93; per Lord Denman, C. J., Goss v. Lord Nugent (1833), 5 B. & Ad. 58; Evans v. Roe (1872), L. R., 7 C. P. 138. And see Inglis v. Buttery (1878), 3 App. Cas. 552, where it was held (see p. 558) that deleted words cannot be looked at. of Parol Evidence). rent (p), or land tax (q), parol evidence is not admissible, even in CH. V. s. 12. equity, to show that the tenant agreed to pay it. So, where there Construction of Contracts is a sale by auction, and the contract is reduced into writing,-as (Admissibility by the auctioneer signing a memorandum of the sale, in a book which contains or refers to the catalogue and conditions of sale,evidence of verbal declarations by the auctioneer, varying the statements contained in the catalogue or conditions, are not admissible (r). 66 But if, in such a case, the contract be not reduced into writing, such declarations are receivable in evidence (s). Where the whole matter passes in parol, all that passes may sometimes be taken together, as forming parcel of the contract, though not always; because matter talked of at the commencement of a bargain, may be excluded by the language used at its termination. But if the contract be in the end reduced into writing, nothing which is not found in the writing can be considered as a part of the contract" (t). written con unwritten After an agreement, not required by law to be in writing, has Alteration or been reduced into writing, however, it is, by the rules of the rescission of common law, competent to the parties at any time before breach of tract by it, by a new contract not in writing, either altogether to waive, contract. dissolve, or annul the former agreement, or in any manner to add to or abstract from, or vary or qualify the terms of it, and thus to make a new contract, which is to be proved, partly by the written agreement, and partly by the subsequent verbal terms engrafted on what will then be left of the written agreement (u). within Goss v. Lord With respect to contracts required by the Statute of Frauds Contracts (see ante, p. 102) to be in writing, however, it is clear that they statute of cannot be altered or even partly rescinded except by writing (x); but Frauds. it appears also that such contracts can be wholly rescinded by parol, Nugent. as has been more than once intimated (y), and once expressly decided (z). The reason for this is simply that the Statute of Frauds, though it requires that the contracts named therein must be in writing to be sued upon, does not require that a dissolution of them must be in writing also, and that a party setting up the dissolution of a contract is not the "party charged" with it. (p) Preston v. Merceau (1779), 2 Bl. 1249. (9) Rich v. Jackson (1794), 4 Bro. C. C. 514; S. C., 6 Ves. 334, n. (r) Shelton v. Livius (1832), 2 C. & J. 411; Powell v. Edmonds (1810), 12 East, 6; 11 R. R. 316; Gunnis v. Erhart (1789), 1 H. Bl. 289; 2 R. R. 769. (8) Edenv. Blake (1845), 13 M. & W. 614. (t) Per Abbott, C. J., Kain v. Old (1324), 2 B. & C. 627, 634. (u) Per Cur., Goss v. Lord Nugent (1833), 5 B. & Ad. 58. (x) Harvey v. Grabham (1836), 5 A. & E. 61; Goss v. Lord Nugent (1833), 5 B. & Ad. 58; Noble v. Ward (1867), L. R., 2 Ex. 135, Ex. Ch.; Sanderson v. Graves (1875), L. R., 10 Ex. 234; Stead v. Dawber (1839), 10 A. & E. 57. (y) In Goss v. Lord Nugent (1833), 5 B. & Ad. 58, and in Price v. Dyer (1810), 17 Ves., at p. 363. (z) Goman v. Salisbury (1684), Vern. 240. CH. V. s. 12. And so, in the case of a deed, a subsequent agreement, not Construction under seal, dispensing with, or varying the time or mode of of Contracts (Admissibility performing an act covenanted to be done, cannot be pleaded in bar to an action on the deed, for non-performance of the act in the manner prescribed (b). of Parol Evidence.) Deeds. Evidence of custom or usage. Limitations of rule as to admissibility of. Evidence to Again in many cases evidence of custom or usage is admissible, for the purpose of annexing incidents to the terms of a written contract, concerning which the contract itself is entirely silent (c). But where evidence of custom or usage is admitted, to add to, or in any manner to affect the construction of a written contract, it is admitted only on the ground that the parties who made the contract were both cognizant of the usage, and must be presumed to have made their agreement with reference to it (d). And this rule is, likewise subject to the qualification-that the peculiar sense which it is proposed, by the evidence, to attach to the words of the contract, must not be inconsistent, either expressly or by implication, with the terms of the written instrument (e). And it is doubtful whether any incident can be added by usage, to a contract made in this country, which the parties are not competent to introduce into it by express stipulation; as, for instance, the incident of negotiability, in the case of an instrument which is not, by our law, negotiable (ƒ). It has, moreover, been held, that parol evidence is admissible to show that in- show that when a document, which is apparently an agreement, was strument does not contain whole agreement. (b) See Littler v. Holland (1790), 3 T. R. 590; Thompson v. Brown (1817), 7 Taunt. 656; Cordwent v. Hunt (1818), 8 Taunt. 596; Kaye v. Waghorn (1809), 1 Taunt. 428. Where, however, in a case between a mortgagor and mortgagee of goods, the question was, whether the mortgagor had "made default in payment" of the mortgage money, at the time mentioned in the deed: it was held that parol evidence was admissible, to show that the mortgagee had, before the day, agreed to wait for payment until a day subsequent ; such non-payment by the mortgagor, with the concurrence of the mortgagee, not being "a default in payment" within the meaning of the deed. Albert v. Grosvenor Investment Company (1867), (c) See Wigglesworth v. Dallison, 1 Sm. (d) Kirchner v. Venus (1859), 12 Moo. P. C. 361. And see per Tindal, C. J., Lewis v. Marshall (1844), 7 M. & G. 729, 744. (e) Dale v. Humfrey (1858), E. B. & E. 1004; Parker v. Ibbetson (1858), 4 C. B. N. S. 346; Suse v. Pompe (1860), 8 id. 538; Field v. Lelean (1861), 6 H. & N. 617, Ex. Ch. ; per Cur. Spartali v. Benecke (1856), 10 C. B. 212, 222; and see Hayton v. Irwin (1879), 5 C. P. D. 130, C. A. (f) Crouch v. Crédit Foncier of Eng land (1873), L. R., 8 Q. B. 374; and see Goodwin v. Robarts (1876), 1 App. Cas. 476. In this case, the Exchequer Chamber expressed an opinion to the effect that, by proof of general usage, such an incident might be added to a contract made in this country; but in the Court of Exchequer and House of Lords, the case appears to have been decided on the ground, that the instrument then in question was a foreign instrument, which was, by the custom of all the stockmarkets in Europe, negotiable; and that, in such a case, our law would follow the custom; and see Fine Art Society v. Potter (1886), 17 Q. B. D. 705, C. A.; London & County Bank Co. v. London & River Plate Co. (1887), 20 Q. B. D. 232; Earl of Sheffield v. London Joint Stock Bank (1888), 13 App. Cas. 333; Williams v. Colonial Bank (1888), 38 Ch. D. 388, C. A. Construction of Contracts (Admissibility signed, the parties expressly stated that they did not intend it to be CH. V. s. 12. the record of any agreement between them (g); or to show that the written instrument does not contain the whole of the contract (h); or, where there are alterations on the face of the document, to show in what state it was when it was agreed to and signed by the parties (i). of Parol Evidence). So, parol evidence is admissible to show, that at the time a Escrow. written paper was signed by the parties, they expressly agreed that it was not to take effect as a contract, except on a certain condition (k); or that it was signed on the faith of a collateral verbal Collateral agreement. agreement, which had not been performed (1); as where a tenant agreed to become so on condition that the landlord would keep down rabbits (m), or repair and furnish (n). As the law leans against the destruction of an instrument by Terms supplied by law reason of uncertainty, so it attaches to those consequences and to avoid unincidents which, in common sense, are appurtenant to its terms; certainty. and which the parties must have understood and intended should be attached thereto (o). Thus if, on a written contract for the sale of goods, no time be provided for the delivery, the law adds the term, that they shall be delivered within a reasonable time (p); and implies a promise to pay, although there be no express agreement to that effect. fraud or ille gality. Parol evidence is always admissible to defeat a deed or written Evidence of contract on the ground of illegality, duress, or fraud; although such evidence directly contradict the statements contained in the instrument (q). And this rule does not contravene the principles we have just been considering; for the effect of such evidence is, to show that the instrument never had any operation. Thus, evidence may (g) Harris v. Rickett (1859), 4 H. & N. 1, 7; Rogers v. Hadley (1863), 2 H. & C. 227, 249. (h) Lindley v. Lacey (1864), 17 C. B., N. S. 578; Malpas v. London and South Western Rail. Co. (1866), L. R., 1 C. P. 336. And in Burglacy v. Ellington (1611), 1 Brownl. 191, it is reported to have been held, that even in the case of a deed, where a verbal agreement is parcel of the original contract, and may well stand with the deed, and is not in terms repugnant to it, such verbal agreement may be pleaded to an action on the deed. And see Co. Litt. 222 b, n. 2. (1) Stewart v. Eddowes (1874), L. R., 9 C. P. 311. (k) Pym v. Campbell (1856), 6 E. & B. 370; Wallis v. Littell (1861), 11 C. B., N. S. 369. CH. V. s. 12. be given of fraudulent misrepresentations, made by the defendant Construction to the plaintiff as to the value of a business, for the purchase of of Contracts (Admissibility which the plaintiff was in treaty with the defendant; although such of Parol representations were not embodied in the contract of sale, or in the deed whereby the premises were conveyed to the plaintiff (r). And so, evidence is admissible, to impeach the consideration for a bill of exchange (s). (r) Dobell v. Stevens (1825), 3 B. & C. 623. Aliter, in the case of misrepresentation without fraud, not embodied in the written agreement; per Lord Tenterden, C. J., Flinn v. Tobin (1829), 1 M. & M. 367. (s) Abbott v. Hendricks (1840), 1 M. & G. 791; and see ss. 27-30 of the Bills of Exchange Act, 1882, 45 & 46 Vict. c. 61, and see post, Ch. XVI., "Bills of Exchange." |