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Construction of Contracts

of Parol Evidence).

sideration is expressed, parol evidence of a good consideration is CH. V. s. 12. admissible (c). And where a bill of exchange was drawn for "two hundred pounds, value received: " but, by the figures at the top, (Admissibility it purported to be a bill for 245l., and the stamp was applicable to the larger sum: it was held that evidence could not be received to show that it was intended to be drawn for the larger sum (d). But parol evidence may be given for the purpose of explaining a Admissible to explain latent latent ambiguity, that is, an ambiguity raised by extrinsic facts (e). ambiguity. This may be illustrated by referring to the familiar instances of a devise or grant of "the manor of A.," the party having two manors of that name (f); or of a bequest to a person, by an inaccurate name (g); or "to J. C. of C.," there being two persons who answered that description (h). And, whether parcel or not of the thing demised? is always matter of evidence (i).

show agency.

Parol evidence may also be given to show, that one or both of Admissible to the contracting parties to an agreement were agents for other persons, and acted as such in making the contract; so as to give the benefit of the contract on the one hand to, and on the other to charge with liability, the unnamed principals. But where an action is brought against a party who appears, on the face of the instrument, to be personally a contracting party, he cannot discharge himself by evidence that he contracted as agent merely (k). And, where a party was described on the face of a contract owner" of a ship, he being, in fact, merely the agent of the owner; it was held, in an action by the principal on such contract, that evidence could not be received, to show the fact of the agency, so as to give the principal a right to sue on the contract (1).

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as

But it would seem that, where a person describes himself in a written instrument as the agent of an unnamed principal, it is competent for the other contracting party to show that, although described as agent, he is in fact the principal (m). So, parol evidence may be given to show, that a written guarantee addressed to one person, was meant to create a responsibility to a firm in which he was partner (n). So, parol evidence has been admitted to show,

(c) Peacock v. Monk (1748), 1 Ves. sen. 128.

(d) Saunderson v. Piper (1839), 7 Scott, 408.

(e) See Doe v. Hiscocks (1839), 5 M. & W. 363; Doe v. Westlake (1820), 4 B. & Al. 57; Thomas v. Thomas (1796), 6 T. R. 671; 3 R. R. 706.

(f) Bac. Elem. rule 23; Plowd. 85 b. (9) See Charter v. Charter (1874), L. R., 7 H. L. 364.

(h) Jones v. Newman (1784), 1 Bl. 60. (4) Per Buller, J., Doe v. Burt (1787), 1 T. R. 701. See Murly v. M'Dermott

(1838), 8 A. & E. 138; Beaumont v. Field
(1818), 1 B. & Al. 247; 19 R. R. 308;
Paddock v. Fradley (1830), 1 C. & J. 90.

(k) Higgins v. Senior (1841), 8 M. &
W. 834, 844; Jones v. Littledale (1837),
6 A. & E. 486, 490; Magee v. Atkinson
(1837), 2 M. & W. 440.

(1) Humble v. Hunter (1848), 12 Q. B. 310.

(m) See Carr v. Jackson (1852), 7 Exch. 382; Schmalz v. Avery (1851), 16 Q. B. 655.

(n) Garrett v. Handley (1825), 4 B. & C. 664.

of Contracts

CH. V. s. 12. that a person whose name appeared on an invoice as the seller of Construction certain goods, was not in fact the person with whom the contract (Admissibility of sale was made (o). And a general receipt indorsed on a bill of exchange may also be explained by parol (p).

of Parol Evidence). Usage of

trade.

Parol evidence is also frequently admitted to show a usage of trade. Thus, where a contract was in these words: "sold 18 pockets Kent hops, at 100s. ;" and it appeared that a pocket contained more than a cwt.; evidence was admitted to show that, by the usage of trade, a contract so worded was understood to mean 5l. per cwt. (q). So, where a corn merchant in Ireland sent written instructions to a factor and del credere agent in London, to sell oats of a certain quality, at a certain price, on his, the merchant's, account: it was held, that evidence was admissible to show that, by the custom of the London corn-trade, the factor was warranted by such instructions in selling in his own name (r). So, where there is a variance between a bought and a sold note, evidence of mercantile usage is admissible to explain it (s). So, evidence is admissible to explain the meaning of a warranty given on a sale of Charter-party. goods (t). So, where a charter-party stipulated, that the ship should proceed to the Tyne, "and, on arrival there, be ready forthwith in regular turns of loading, to take on board" a cargo of coals and coke: it was held that evidence was admissible, to show what was meant by "regular terms of loading," according to the usage of the ports on the Tyne (u). So, in the case of The Timber trade. Norden Steam Company v. Dempsey (x), evidence was held to be admissible, for the purpose of showing at what time, according to the custom of the port of Liverpool, a ship engaged in the timber trade, and chartered to that port with a cargo of timber, should be deemed to have arrived at her place of discharge, within the meaning of the charter-party. And where a theatrical manager contracted with an actress, to engage her for "three years "at a certain salary: it was held that parol evidence might be given, to show that, according to the uniform usage of that profession, the plaintiff was to be paid only during the theatrical season in each of those years (y).

Theatrical profession.

In like manner it has been held, that evidence is admissible to show that, by the usage of a particular trade, all sales are by

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Construction of Contracts

of Parol Evidence).

sample, although it is not so expressed in the bought-and-sold CH. V. s. 12. notes (z). So, where a broker signed a note in this form :"Sold this day for Messrs. T. to our principals, ten tons of (Admissibility linseed oil, &c.," and delivered this note to Messrs. T., but did not disclose his principals: it was held, that evidence might be given of a custom in the trade, that, where a broker purchased without disclosing his principal, he was himself liable to be looked to as the purchaser (a). So, in an action on a policy of insurance in the ordinary form, to recover general average in respect of goods jettisoned, the defendant may plead a custom that, under such a policy, the underwriters are not liable for the jettison of goods stowed on deck (b). So, evidence has been held to be admissible to show the meaning of the word "bale," as used in a particular trade (c). So, where it was agreed by charter-party, to load on board a vessel at Trinidad "a full and complete cargo of sugar, molasses, and other produce: " it was held, that evidence might be given of a custom at Trinidad, to load sugar in hogsheads, and molasses in puncheons, so as to show that the defendant, by loading a cargo according to the custom, had performed the contract (d). So, where the defendant by charter-party undertook to ship at Bombay a full cargo, at a certain rate of freight per ton; "cotton to be calculated at fifty cubic feet per ton :" it was held, that evidence was admissible to show that, by the custom of the trade, freight was always calculated on the measurement of the bales of cotton taken at Bombay (e). So where goods are sold by sample, evidence of a custom of the trade, as to returning or making an allowance for such of the goods as do not answer the sample, is admissible (f). And so, where a workman was hired for a year, by an agreement in writing which was silent as to holidays it was held, that parol evidence might be received to show, that it was the custom of the trade, for the workmen to take certain holidays without the master's permission (g). But where it was agreed by charter-party, that freight should be paid as follows:-for wool, 14d. per lb. pressed, and 14d. and of a penny per lb. unpressed, gross weight:" it was held, that parol evidence was not admissible to show that, by the custom of the

(2) Syers v. Jonas (1848), 2 Exch. 111. a) Dale v. Humfrey (1858), E. B. & E. 1004; Fleet v. Murton (1871), L. R., 7 Q. B. 126; Hutchinson v. Tatham (1873), L. R., 8 C. P. 482; Hutcheson V. Eaton (1884), 13 Q. B. D. 861; Pike V. Ongley (1887), 18 Q. B. D. 708, C. A. (b) Miller v. Tetherington (1861), H. & N. 278.

(e) Gorissen v. Perrin (1857), 2 C. B., N. S. 681.

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(d) Cuthbert v. Cumming (1855), 10 Exch. 809; 11 Exch. 405, Ex. Ch.

(e) Bottomley v. Forbes (1838), 6 Scott, 866. And see Buckle v. Knoop (1867), L. R., 2 Ex. 125.

(f) Cooke v. Riddelien (1844), 1 C. & K. 561; Sanders v. Jameson (1848), 2 C. & K. 557.

(g) Reg. v. Inhabitants of Stoke-uponTrent (1843), 5 Q. B. 303.

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
Ex. 430; Hall v. Cazenove (1804), 4 East,
477; 7 R. R. 611.

(1) Davis v. Jones (1856), 17 C. B. 625.
(m) Ph. Ev. 8th edit. 521.

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.

Evidence).

rent (p), or land tax (q), parol evidence is not admissible, even in Cí. 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 of Parol 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).

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).

rescission of

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 written concommon 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) Eden v. Blake (1845), 13 M. & W. 614. (t) Per Abbott, C. J., Kain v. Old (1324), 2 B. & C. 627, 634.

() 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.

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