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CHAPTER IX.

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

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

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; for 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.

The general rule (o) 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 first loses a term, and then gains a consistent addition and supplement.

It is an undoubted principle that extrinsic evidence is inadmissible to contradict or vary a written instrument; but it is impossible to lay down as a general rule that extrinsic oral evidence is inadmissible to prove either the entire or partial dissolution of the original

(0) Cf. Goss v. Lord Nugent, 5 B. & Ad. 64.

contract, or the substitution or annexation of a new verbal contract.

With regard to any contract which the parties have voluntarily put into writing, it is competent to them "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” (p). But with regard to contracts which the law requires to be in writing, it is necessary to consider the language of the particular statute. Thus, it has often been questioned whether a contract, within the Statute of Frauds, can be waived and abandoned, before breach, by a subsequent agreement not in writing. It may be desirable to trace 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 (q); 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

(p) Goss v. Lord Nugent, 5 B. & Ad. 58.
(q) Gorman v. Sailsbury, 1 Vern. 239.

contract (r). But this doctrine has been impugned by later authorities. Thus, in Goss v. Lord Nugent(s), where 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 (t); 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 (u). 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 (x), 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 agreement; and the point for the court was, whether the

(r) Buckhouse v. Crossby, cited 3 T. R. 591; Bell v. Howard, 9 Mod. 305.

(s) 5 B. & Ad. 58.

(t) Harvey v. Grabham, 5 Ad. & Ell. 74.

(u) Stowell v. Robinson, 3 Bing. N. C. 937. (x) 10 Ad. & Ell. 57.

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: "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." It is right to observe that this case has been cited with general approbation by Parke, B. (y).

In a very late case the Court of Exchequer Chamber have held that a subsequent oral agreement cannot be "allowed to be good," within the 17th section, for any purpose whatever (z).

The doctrines of the courts of equity in rectifying mistakes in deeds, so as to make them accord with the real agreement between the parties, may here be alluded to as an exception to the general rule under consideration. Thus, a lease which contained a larger quantity of land than was intended to be demised has been rectified as to the overplus (a).

(y) Marshall v. Lynn, 6 M. & W. 109.

So also

(z) Noble v. Ward, 4 H. & C. 149; cf. Moore v. Campbell, 10 Ex. 323.

(a) Mortimer v. Shortall, 2 Dru. & War. 363; Murray v. Parker, 19 Beav. 305.

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