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name, the contract will be fulfilled by a supply of any goods to which that name is applicable; and parol evidence will not be received to show that the parties intended that goods of the superior quality should be supplied.1

A person who appears on the face of a written contract to have contracted as a principal, cannot show by extrinsic evidence that he contracted as an agent;2 nor can he show that a contract, signed by him expressly as a principal, was made by him as an agent for a party to the action.3 But, if the contract appear to have been made merely in his own name, without addition, it may be shown that he was in fact an agent for another. This is an exceptional case; for generally extrinsic evidence is inadmissible to show that a person not a party to a written instrument on the face of it, was, in fact, a party.5 On the same principle, evidence of a custom cannot be received to vary the express language of a contract.6

Writings within the Statute of Frauds are construed still more stringently; and parol evidence is still more inadmissible, than even in cases at common law, to contradict or vary the terms of the written contract. The principles by which such contracts are construed have been considered at length; and it is therefore unnecessary to prolong this chapter by a more elaborate treatment of them.7

It will be remembered that the rule, to which this chapter has been given, applies only to cases where the written or oral evidence, which it is desired to couple with the principal writing, is repugnant to the terms of the latter. It does not apply to antecedent, collateral

Smith v. Jeffryes, 15 M. & W. 561.

2 Higgins v. Senior, 8 M. & W. 834.

Humble v. Hunter, 12 Q. B. 310.

4 Patteson, J.: ibid.

5 Robinson v. Rudkins, 26 L. J. 56, Ex.

6 Hudson v. Clementson, 25 L. J. 234, C. P.

7 Supra, p. 390, and see Goss v. Lord Nugent, 5 B. & Ad. 58; Stead v. Dawber, 10 A. & El. 17.

or subsequent agreements, which are not manifestly inconsistent and irreconcilable with the principal writing; or which, in the case of writings not under seal, may be regarded as a partial rescission, and not a mere waiver, of the original contract. The practical difficulty is to determine what is a rescission, which is valid as the basis of a new contract; and what is a mere variation of a term, which is void as inconsistent with the express language of the original and subsisting contract.

It is also to be observed, that, in the case of writings not under seal, the rule is limited to cases in which it is attempted to vary or complete an instrument in writing by the interposition of oral evidence. It does not extend to cases in which it is sought to prove a complete contract by the juxtaposition and comparison of separate but connected writings. All that the rule requires in this instance is that the several writings shall speak for themselves; and that the construction shall not be aided in general by the addition of oral evidence. It is true that a contract, not required to be in writing, may be proved by evidence of an oral acceptance of a written proposal; but where a contract is required to be in writing, the acceptance as well as the proposal must be in writing, and oral evidence cannot be received of any branch of such a contract. But where a contract rests on a number of related papers in which a hiatus appears, the hiatus cannot be supplied by the introduction of oral evidence, or acts of the parties.1

1 Boydell v. Drummond, 11 East, 142.

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CHAPTER X.

ON THE ADMISSIBILITY OF EXTRINSIC EVIDENCE TO EXPLAIN WRITTEN EVIDENCE.

THE second branch of the principle of evidence, which was discussed in the preceding chapter, is contained in the rule that

Extrinsic evidence is admissible to explain written

evidence.

As in the case of the rule that extrinsic evidence is inadmissible to vary written evidence, it is more easy to illustrate the above rule than to reconcile the decisions under it; but, without investigating all the subtleties of the doctrine, it will be attempted to define its general scope and practical application.

First, parol evidence is admissible to prove that that which purports to be a deed or writing of a certain kind has been made under circumstances which deprive it of all such effect. Thus, it may be shown that a writing, purporting to be a contract, was made subject to a condition, through the non-fulfilment of which no contract has ever arisen.1 So it may be shown that an instrument, which appears to be a binding one to take effect immediately, was delivered as an escrow, and was not intended to operate until certain things were done;'

1 Pym v. Campbell, 25 L. J. 277, Q. B.; Thomas v. Clarke, 25 L. J. 309, C. P.

2 Davis v. Jones, 25 L. J. 91, C. P.

and, on the same principle, when an agreement does not declare the time from which and to which it is to operate, parol evidence is receivable to supply the ambiguity. Similar evidence may be given to show on which of two counts of a Nisi Prius record damages, which have been entered generally, were actually recovered.2

The law recognises, according to the authority of Lord Bacon, two kinds of ambiguity in written instruments, viz., patent and latent. A patent ambiguity is said to exist when the instrument, on its face, is unintelligible, as where a devise is made, and a blank appears in the place of the name of the devisee. In such a case, extrinsic evidence is wholly inadmissible to show who was intended to be the devisee; for, if it were admissible, it would be tantamount to permitting wills to be made verbally, and would also be a violation of the principle, that where a contract, or other substantial matter of issue, has been reduced to writing, the writing is the only admissible proof of such contract or transaction.

But where a written instrument is intelligible on its face, but a difficulty arises from extrinsic circumstances in understanding and carrying out its terms, the ambiguity is said to be latent, and extrinsic evidence will be strictly admissible to explain and apply those circumstances, so as to reconcile them to the terms of the writing. But such evidence will be admissible only to explain, and not to vary. Thus, in Goldshede v. Swan, Parke, B., said: "You cannot vary the terms of a written instrument by parol evidence: that is a regular rule; but if you can construe an instrument by parol evidence, when that instrument is ambiguous, in such a manner as not to contradict, you are at liberty to do so.' The leading principles of this

1 Davis v. Jones, 25 L. J. 91, C. P.
2 Preston v. Peeke, 27 L. J. 424, Q. B.
3 1 Exch. 158.

general rule will now be considered under those subdivisions which occur most frequently in practice.

1. Where a written instrument is in a foreign language, or where it contains technical words of trade or custom, the ambiguity will be treated as latent; and oral or other extrinsic evidence will be received to inform the court of the sense of the instrument.1 Thus, in Shore v. Wilson, Parke, B., said: "I apprehend that there are two descriptions of evidence which are clearly admissible for the purpose of enabling a court to construe any written instrument, and to apply it practically. In the first place, there is no doubt that not only when the language of the instru ment is such as the court does not understand, it is competent to receive evidence of the proper meaning of that language, as when it is written in a foreign tongue; but it is also competent where technical words or peculiar terms, or, indeed, any expressions are used, which at the time the instrument was written had acquired an appropriate meaning, either generally or by local usage, or amongst particular classes. This description of evidence is admissible in order to enable the court to understand the meaning of the words contained in the instrument itself, by themselves, and without reference to the extrinsic facts on which the instrument is intended to operate."

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Accordingly, extrinsic evidence was received in this case to explain the meaning of the phrase, "Godly preachers of Christ's Holy Gospel," and to show that, according to the usage of a sect to which the grantor belonged, the grant was intended for that sect. So, such evidence has been received to explain the meaning of the phrase across a country" in a steeple-chase transaction; that "close," by local usage, signified "a

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1 Shore v. Wilson, 9 Cl. & Fin. 555, Parke, B.

2 Evans v. Pratt, 3 M. & G. 759.

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