Construction of Contracts (Parol Evidence). CH. V. s. 12. common law, competent to the parties at any time before breach of it, by a new contract not in writing, either altogether to waive, 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 (m). Contracts Deeds. Evidence of custom or usage. Limitations of rule as to admissibility of parol evidence. Contracts required by the Statute of Frauds (see ante, p. 76) to be in writing cannot be altered or even partly rescinded except by writing (n); but it appears also that such contracts can be wholly rescinded by parol, as has been more than once intimated (o), and once expressly decided (p). 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. And so, in the case of a deed, a subsequent agreement, not under seal, dispensing with, or varying the time or mode of 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 (q). 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 (r). 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 (s). 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 (t). (m) Per Cur., Goss v. Lord Nugent (1833), 5 B. & Ad. 58. (n) 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. (0) In Goss v. Lord Nugent (1833), 5 B. & Ad. 58, and in Price v. Dyer (1810), 17 Ves., at p. 363. (p) Goman v. Salisbury (1684), Vern. 240. (4) Thompson v. Brown (1817), 7 Taunt. 656; Cordwent v. Hunt (1818), 8 Taunt. 596. (r) See Wigglesworth v. Dallison (1779), 1 Sm. L. C. and cases collected in notes, and see Lucas v. Bristow (1858), E., B. & E. 907. (s) Kirchner v. Venus (1859), 12 Moo. P. C. 361. And see per Tindal, C.J., Lewis v. Marshall (1844), 7 M. & G. 729, 744. (t) Dale v. Humfrey (1858), E., B. & E. 1004; Parker v. Ibbetson (1858), 4 C. B., And it is doubtful whether any incident can be added by CH. V. s. 12. 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 (u). Construction of Contracts (Parol Evidence). Evidence to instrument does not con show that tain whole It has, moreover, been held, that parol evidence is admissible to show that when a document, which is apparently an agreement, was signed, the parties expressly stated that they did not intend it to be the record of any agreement between them (x); or to agreement. show that the written instrument does not contain the whole of the contract (y); 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 (z). 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 (a); or that it was signed on the faith of a collateral Collateral verbal agreement, which had not been performed (b); as where a tenant agreed to become so on condition that the landlord would keep down rabbits (c), or repair and furnish (d). Parol evidence is always admissible to defeat a deed or written contract on the ground of illegality, duress, or fraud; although such evidence directly contradict the statements contained in the instrument (e). 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 be given of fraudulent misrepresentations, made by 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. (u) Crouch v. Crédit Foncier of England (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 and County Bank Co. v. London and River Plate Co. (1887), 20 Q. B. D. 232; Earl of Sheffield v. London Joint Stock Bank (1888), 13 App. Cas. (x) Harris v. Rickett (1859), 4 H. & N. (y) 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. (2) Stewart v. Eddowes (1874), L. R., 9 C. P. 311. (a) Pym v. Campbell (1856), 6 E. & B. 370; Wallis v. Littell (1861), 11 C. B., N. S. 369. (b) Morgan v. Griffith (1871), L. R., 6 Ex. 70; Erskine v. Adeane (1873), L. R., 8 Ch. 756. (c) Morgan v. Griffith (1871), L. R., 6 Ex. 70. (d) Angell v. Duke (1875), L. R., 10 Q. B. 174. (e) See Wright v. Crookes (1840), 1 Scott, N. R. 685; Collins v. Blantern (1767), 2 Wils. 347; 1 Sm. L. C., and notes thereto. agreement. Evidence of fraud or ille. gality. CH. V. s. 12. the defendant to the plaintiff as to the value of a business, for Construction the purchase of which the plaintiff was in treaty with the defen of Contracts (Parol Evidence). dant; although such representations were not embodied in the contract of sale, or in the deed whereby the premises were conveyed to the plaintiff (ƒ). And so, evidence is admissible to impeach the consideration for a bill of exchange (g). (f) 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. (g) 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." SECT. 1.-Contracts generally charged with Duty. THE Consolidating Stamp Act, 1891, 54 & 55 Vict. c. 39 (a), which reproduces the former consolidating Act of 1870 and its amending Acts with comparatively immaterial amendments, by sect. 14 (4), as we shall see presently (see p. 121), prohibits the giving of unstamped documents in evidence, and the first section enacts that, subject to the exemptions contained in the Act, and in any other Acts for the time being in force (b), there shall be charged on the several instruments specified in the first schedule, the several duties therein specified. And by the said schedule, an "agreement, or any memorandum Agreements. of an agreement, made in England or Ireland under hand only, or made in Scotland without any clause of registration, and not otherwise specifically charged with any duty, whether the same be only evidence of a contract, or obligatory upon the parties from its being a written instrument," is charged with a duty of 6d., which duty, by sect. 22 of the Act, may be denoted by an adhesive stamp, to be cancelled by the person by whom it is first executed. But any "agreement or memorandum, the matter whereof is not of the value of 5l.," is exempt from duty. And a copy or extract, attested or in any manner authenticated, As to copies of or from any agreement chargeable with duty, is chargeable with the same duty as the agreement itself (c). (a) See this Act and its amending enactments in Chitty's Statutes, 5th ed., tit. "Stamps," and see also Alpe's Law of Stamp Duties, and Highmore's Stamp Acts. (b) The exceptions are numerous, more than seventy being enumerated in Alpe's Digest. (c) See Sched. " Copy or Extract." But an examined copy, which is produced by a witness as secondary evidence of the contents of an agreement, may be read without being stamped. For, in point of law, it is used merely to refresh the memory of the witness as to the contents of the agreement (d). Agreements for lease. Broker's SECT. 2.-Agreements specifically charged with Duty. The following is a list of the agreements specifically charged with duty by the Stamp Act, 1891 And the following is a list of the agreements which by s. 15 of that Act (see p. 120, post), it is highly penal not to stamp : Bond, &c., as described in schedule to the Act. Lease. An agreement for leases for any term not exceeding 35 years is, by sect. 75 of the Act, expressly made subject to the same duty as if it were an actual lease for the term and consideration mentioned in the agreement. By sects. 52 and 53 of the Stamp Act, 1891, and sched. I., tit. "Contract Note," as amended by sect. 3 of the Customs and Inland Revenue Act, 1893, 56 & 57 Vict. c. 7, which reproduces with amendments, sects. 16 and 17 of the Customs and Inland Revenue Act, 1888, 51 Vict. c. 8, a broker's contract note advising the sale or purchase of any stock or marketable security of the value of five pounds and under one hundred pounds, is charged with the duty of one penny, and of the value of one hundred pounds or upwards is charged with the duty of one shilling, to be denoted by an adhesive stamp or stamps to be cancelled by the person by whom the note is executed, and the shilling duty "may be added to the charge for brokerage or agency." As amended by sect. 13 of (d) Braythwayte v. Hitchcock (1842), 10 M. & W. 494. |