CHAPTER VII.

ON THE INADMISSIBILITY OF EXTRINSIC EVIDENCE TO CONTRADICT OR VARY WRITTEN EVIDENCE.

WHEN written evidence is primary, and not merely substitutionary in character; or, in other words, when it is made by statute or common law the best evidence; it is clear that the principle of a fundamental rule would be destroyed if a party were allowed to contradict such evidence, or to vary it substantially by the introduction of oral or other extrinsic evidence.

Therefore it is an established and inflexible rule

that

IV. Extrinsic evidence is inadmissible to contradict, add to, or subtract from, or vary, the terms of a written in

strument.

Thus, where a contract is required by statute to be in writing, or where it has been reduced to writing by the voluntary act of the parties to it, as long as the writing is producible, it is the only admissible evidence of the terms of the contract. Neither party can show that, before the contract was reduced to writing, the parties agreed to a term which does not appear in the writing, and which is clearly repugnant to its provisions, but all such antecedent oral terms are merged in the express language of the writing. Similarly, neither party can show that, after the contract was reduced to writing, the parties agreed to a new term, which is also repugnant to the terms of the written agreement, unless such subsequent agreement amount to an entire or partial dissolution of the former

contract, or to a new contract founded on a new consideration.

Accordingly, in Goss v. Lord Nugent, Lord Denman said :—

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By the general rule of the common law, if there be a contract which has been reduced into writing, 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 subtract from, or in any manner to vary or qualify, the written contract; but, after the agreement has been reduced into writing, it is 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 subtract 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 upon what will be thus left of the written agreement."

The general rule, therefore, operates thus: — A contract, which is valid without writing, will, if put into writing, be construed strictly according to the terms of such writing. No new term can be annexed to it, as impliedly contained in it before it was reduced into writing, or while it was being reduced into writing, if such parol term contradict or vary a written term; but the written contract may be wholly or partially waived before breach, and a new written or verbal contract substituted for the erased term of the original contract; and then the residue of the original contract will be construed cumulatively with the new subsequent contract. Thus, there will be no contradiction or variance of the original contract, but merely, first, the erasure of a term, and secondly, not the insertion, but the annexation, of a new contract. In short, the original contract does not suffer a contradiction, but

15 B. & Ad. 64.

first loses a term, and then gains a concurrent addition and supplement.

It is essential to a right understanding of this branch of the law of evidence that every practitioner and student should bear the above distinction clearly in mind, as the only apparent solution and reconciliation of many abstract, and seemingly contradictory, principles. For, as on the one hand, it is an undoubted principle that extrinsic evidence is inadmissible to contradict or to vary a written contract, so it is equally undoubted that such evidence is strictly admissible to prove either the entire or partial dissolution of the original contract; and the substitution or annexation of a new verbal contract; or to explain the original contract. It must be conceded that the practical distinction between the explanation and the variance of a written contract is in many cases shadowy, indefinable, and unsatisfactory. But it must always be borne in mind, that however difficult it may be to mark the limit, the theory of the above rule is simple and consistent, and equally so, the rule that

V. Extrinsic oral evidence is admissible to prove that a written contract, not under seal, has been discharged, either before or after breach.

It must be stated, however, at this point, that this doctrine applies manifestly and indisputably only to such contracts at common law as are not affected by the Statute of Frauds; and it is still doubtful how far a contract, within that statute, can be waived and abandoned, before breach, by a subsequent agreement not in writing. The authorities on this subject are, on the whole, in favour of the affirmative; but the point has never been satisfactorily decided. It may, therefore be desirable to state concisely the curious uncertainty of the law on this head.

The point arose soon after the statute was passed, and was decided shortly by the Lord Keeper in the

affirmative; but the facts of the case are wanting; and no reasons are assigned, nor does the point seem to have received due consideration. Lord Hardwicke, in two cases, expressed a strong opinion that an interest in land, under a written contract within the statute, could not be waived by naked parol without writing; for an agreement to waive a purchase contract is as much an agreement concerning lands as the original contract.2 But this doctrine has been impugned by later authorities. Thus, in Goss v. Lord Nugent,3 when the point arose, although it was not necessary to decide it, Lord Denman, in commenting on the 3rd section of the Statute of Frauds, said :—

"As there is no clause in the act which requires the dissolution of such contracts to be in writing, it should rather seem that a written contract concerning the sale of lands may still be waived and abandoned by a new agreement not in writing, and so as to prevent either party from recovering on the contract which was in writing." But, in a later case, his Lordship appears to have doubted the accuracy of his earlier opinion; and in a case, shortly subsequent, in the Common Pleas, Tindal, C. J., showed a disposition to adopt, to its full extent, the reasoning of Lord Hardwicke.5 It appears also, from a still later case, that Lord Denman himself had qualified or abandoned the view which he held in Goss v. Lord Nugent. This case is that of Stead v. Dawber, where the action was on a contract for the sale of goods within the 17th section of the Statute of Frauds ; and the plaintiff declared on a written agreement, by which the goods were to be delivered on a day certain, and then went on to aver an oral agreement that the delivery should be postponed to a later day, and breach the non-delivery on such later day. The defendant pleaded the want of a written agree

6

1 Gorman v. Salisbury, 1 Vern. 239.

2 Buckhouse v. Crossby, cited 3 T. R. 591; Bell v. Howard, 9 Mod. 305. 35 B. & Ad. 58.

4 Harvey v. Grabham, 5 Ad. & Ell. 74. 5 Stowell v. Robinson, 3 Bing. N. C. 937.

10 Ad. & Ell. 57.

ment, and the point for the court was, whether the oral agreement was to be regarded as a variation of the written agreement, or as the introduction of an immaterial term. The court gave judgment for the defendant, on the ground that time was of the essence of the contract, and therefore could not be varied by parol; but it seems also to have been understood that neither could the original contract have been waived by parol. Lord Denman said :

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Independently of the statute, there is nothing to prevent the total waiver or the partial alteration of a written contract, not under seal, by parol agreement; and, in contemplation of law, such a contract so altered subsists between these parties; but the statute intervenes, and, in the case of such a contract, takes away the remedy by action."1 It is right to observe that this case has been cited with general approbation by Parke, B.2

The main point, therefore, viz., whether a contract in writing, within the Statute of Frauds, can be waived or discharged, before breach, by a subsequent oral agreement, must be regarded as an open question. The courts have never yet found it necessary to declare the law on this subject; and the text writers are at issue on it, as on the vexata quæstio of a scintilla juris.3

In returning to the general question of the admissibility of extrinsic evidence to affect written instruments, it is to be observed, that—

VI. A written instrument cannot be re

leased or avoided by evidence of an intrinsically inferior nature.

Thus, a deed must be released by deed, and cannot be avoided by parol. A will must be revoked with the same solemnities which are required to give it validity

1 10 Ad. & El. 65.

2 Marshall v. Lynn, 6 M. & W. 109. 3 Stark. p. 724 (4th edit.); Chitty's Statutes, vol. 1, p. 147, n. affirmant; Rosc. N. P. 18; 2 Phill. 356; Sugd. Vendors and Purchasers, vol. 2, 174, dubitant.