show that a different consideration passed (h); but, where the payment of the consideration is not stated conclusively and unambiguously in the deed, the nonpayment may be proved by extrinsic evidence. Thus, where a deed recited that a releasee had agreed to pay a certain sum, and then referred to it as the said sum being now so paid as hereinbefore mentioned;" then followed words of reference which were equally applicable to the sum in question and other sums mentioned; then an acknowledgment in the body of the deed of the receipt of such sums, and a receipt for the first sum was indorsed on the deed; it was held that the acknowledgment in the recital was ambiguous, that the receipt in the body of the deed was equally ambiguous, and that the indorsed receipt constituted only primâ facie evidence. On these grounds, a plaintiff in assumpsit was held not to be estopped by the deed from showing by parol evidence that the sum in question, the substantial consideration money, had never been paid (i).

It is also allowable to prove, by extrinsic evidence, a larger or supplementary consideration; provided it be not inconsistent with the consideration named in the deed (). Thus, a deed purporting to be founded on a money consideration may be proved to have been founded also on any other good consideration, such as marriage (1); or, not purporting to be founded on

(h) Smith v. Battams, 26 L. J., Ex. 232.
(i) Lampon v. Cooke, 5 B. & Ald. 606.
(k) Clifford v. Turrell, 1 Y. & C. (Ch.) 138.
(1) Villen v. Beaumont, 2 Dyer, 146 a.

any consideration, it may be shown to have been founded on a valuable consideration (m); or, purporting to be founded on natural affection, it may be shown to have been founded also on a valuable consideration, at least to rebut a charge of fraud (n). In all such cases the rule which does not permit written evidence to be contradicted or varied by extrinsic evidence remains unaffected, because the extrinsic evidence is received only to annex an incident which is not clearly excluded by the written instrument.

In R. v. Scammonden (o), the court held it clear that a "party might prove other considerations than those expressed in the deed;" and allowed extrinsic parol evidence to be given to show that the actual consideration paid was thirty pounds, although the consideration named in the deed and the indorsed receipt was twenty-eight pounds. So, in R. v. Inhabitants of London (p), the same court held that parol evidence was admissible to import a consideration which converted an agreement of hiring as a servant into an agreement to serve as an apprentice. In the former case, the parol consideration appears to have been treated as explanatory of, and not as additional to, the expressed consideration; and in the latter case, Lord Kenyon stated that "the parol evidence was not offered to contradict the written agreement,

(m) Peacock v. Monk, 1 Ves. sen. 128; see Townend v. Toker, L. R., 1 Ch. 446; 35 L. J., Ch. 608; 14 W. R. 806.

(n) Gale v. Williamson, 8 M. & W. 405.

(0) 3 T. R. 474.

(p) 8 T. R. 379.

but to ascertain an independent fact." It has been remarked that in both these cases the parol evidence was received, not to contradict a written agreement, but to ascertain an independent fact explanatory of it (q).

A policy of insurance cannot be contradicted by an antecedent written agreement, as where a defendant attempts to show, by such an agreement, that the risk was to begin at a place and date subsequent to those which are named in the policy (r); nor can a charter-party be varied by a parol agreement, substituting one place of destination for another (s), unless such an agreement can be treated, not as a new term, but as a new and distinct contract (t).

Where the fact sought to be added is formal, and not of the essence of the contract, the rule does not appear to apply. Thus, a deed may be proved to have been delivered either before or after the day on which it purports to have been delivered (u), and parol evidence is admissible to show that there was a mistake in the date of a charter-party (x), a deed (y) or a will (≈); but the day appointed in a written contract for the performance of a certain act, such as the completion of a purchase, cannot be

(9) Per Williams, J., R. v. Stoke-upon-Trent, 5 Q. B. 308. (r) Kame v. Knightley, Skin. 54.

(8) Leslie v. De la Torre, cited in White v. Parker, 12 East, 383.

(t) White v. Parker, supra.

(u) Goddard's case, 2 Rep. 4 b.

(x) Hall v. Cazenove, 4 East, 476.

(y) Payne v. Hughes, 10 Ex. 430.

(z) Reffell v. Reffell, L. R., 1 P. & D. 139; 35 L. J., P. & M. 121..

altered by extrinsic evidence (a). Parol evidence is admissible to prove that there has been no default within the meaning of a mortgage deed (b).

The admissibility of extrinsic evidence to affect wills will be treated in the following chapter. Some instances will, however, be here given of the application of the rule at present under discussion to ordinary written instruments not under seal.

Where the printed conditions of sale at an auction, signed by the auctioneer, described the time and place of the sale, and the number and kind of timber sold, but said nothing about the weight, evidence of the auctioneer's statements at the sale was held inadmissible to prove that a certain weight had been warranted. Lord Ellenborough said: "There is no doubt that the parol evidence was properly rejected. The purchaser ought to have had it reduced into writing at the time, if the representation then made as to the quantity swayed him to bid for the lot. If the parol evidence were admissible in this case, I know of no instance where a party may not by parol testimony superadd any term to a written agreement, which would be setting aside all written contracts, and rendering them of no effect. There is no doubt that the warranty as to the quantity of the timber would vary the agreement contained in the written conditions of sale" (c). This case is general in its

(a) Stowell v. Robinson, 3 Bing. N. C. 928.

(b) Albert v. Grosvenor Investment Co., L. R., 3 Q. B. 123; 37 L. J., Q. B. 24.

(c) Powell v. Edmunds, 12 East, 6.

application; but the rule was probably stated and observed more inflexibly, because the agreement was clearly within the Statute of Frauds; but it is distinguishable from a later case, which decided that unsigned conditions of sale are only in the nature of a personal memorandum, which may be varied at any time before the sale by an express notice to a purchaser (d).

Extrinsic evidence may be given of a collateral oral agreement which constitutes a condition upon which the performance of a written agreement is to depend (e), and where there is a distinct collateral oral agreement between the parties, it is immaterial whether it precedes or is contemporaneous with the written agreement (f). Where a contract for the sale of goods specified no time for removing them, it was held that oral evidence could not be given of a condition that they should be removed immediately (g). A written contract to supply flour of X. S. quality, cannot be varied by parol evidence to show that by X. S. quality, the parties intended X. S. S. quality (h). So, a written contract to supply foreign refined oil cannot be varied by oral evidence that the parties agreed to consider an inferior kind of oil a foreign refined oil (i); and a policy of insurance cannot be

(d) Eden v. Blake, 13 M. & W. 614.

(e) Wallis v. Littell, 11 C. B., N. S. 369.

(ƒ) Per Erle, C. J., Lindley v. Lacey, 17 C. B., N. S. 586.

(g) Greaves v. Ashlin, 3 Camp. 426.

(h) Harnor v. Groves, 15 C. B. 667.

(i) Nichol v. Godts, 10 Ex. 191.