or given, concerning or relating to the character, conduct, credit, ability, trade or dealings of any other person, to the intent or purpose that such other person may obtain credit, money or goods upon, unless such representation or assurance be made in writing, signed by the party to be charged therewith." The signature of an agent is insufficient (x). Consequently a representation cannot bind a corporation unless under its seal (y).

Other instances might be cited, in which the legislature has made written evidence the only admissible kind of evidence, to the total exclusion of even the most direct oral evidence; but the above enactments are those which are of the most constant practical recurrence, and they have therefore been selected, on due deliberation, as the most suitable for the dimensions of the present work.

(x) Swift v. Jewsbury, L. R., 9 Q. B. 301.

(y) Bishop v. Balkis Consolidated Co., 25 Q. B. D. 77.

CHAPTER VI.

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 substantially by the introduction of oral or other extrinsic evidence. Therefore it is an established and inflexible rule that

it

Extrinsic evidence is inadmissible to contradict, add to, 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 dissolu

tion of the former contract, or to a new contract founded on a new consideration.

The general rule (a) 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 contradicts or varies 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.

Where the subsequent contract incorporates portions of the original contract, and amounts to a waiver of the rest, the subsequent contract is the only one subsisting between the parties, and if dealing with a subject-matter, where the law requires a writing, such subsequent contract must be in writing. Thus, where the plaintiffs agreed in writing with the defendant to let him a public-house, as tenant from year to year, with the option on his part to call for a lease for twentyeight years, upon the terms, among others, that if he sold the lease for more than 1,2007. he was to give the plaintiffs half the excess, and subsequently, by verbal agreement, a lease was granted, the terms of which differed materially from those stipulated for in the written agreement, but the parties never abandoned the agreement as to the division of the

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

excess of the purchase-money, and the defendant having sold the lease for 2,5007. the plaintiff sued him for a moiety of the 1,3007, the excess of the purchase-money over the 1,2007., it was held by the Court of Exchequer that the original agreement in writing was entirely superseded, and that the agreement under which the lease was taken was the verbal one of which one term was the stipulation in the original contract as to the excess of the purchase-money; and that as the agreement was not in writing, as required by the Statute of Frauds, the plaintiffs were not entitled to recover (b). Parol evidence is admissible to show that, after signing a document, the defendant assented to certain alterations made by the plaintiff before it was signed by the latter, for such evidence does not vary the contract, but only proves the condition of the document when it first became a contract (c).

It is an undoubted principle that extrinsic evidence is inadmissible to contradict or vary a written instrument. It is, however, 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 contract; or the substitution or annexation of a new verbal contract; but wherever it is attempted to superadd an oral to a written contract, there must be clear evidence of the actual words used (d).

Contracts required by law to be in writing (e). This rule does not, however, apply in its integrity to contracts which the law requires to be in writing, as to which it is generally necessary to consider the language of the particular statutes which require them to be in writing. With regard to contracts which the Statute of Frauds requires to

(b) Sanderson v. Graves, L. R., 10 Ex. 234.

(c) Stewart v. Eddowes, L. R., 9 C. P. 311.

(d) Per James, L. J., Thomson v. Simpson, 18 W. R., 1091.

(e) Of which the following are

some of the most important ;—(1) Sales of ships or shares of ships; (2) contracts falling within the Statute of Frauds or the Sale of Goods Act, 1893; (3) contracts under the Merchant Shipping Act; (4) contracts under the Truck Acts.

be in writing, Lindley, J., in Hickman v. Haines (f), after referring to several well-known cases, said, "The result of these cases appears to be, that neither a plaintiff nor a defendant can at law avail himself of a parol agreement to vary or enlarge the time for performing a contract previously entered into in writing, and required so to be by the Statute of Frauds"; and this is of course equally true of all attempted variations (g). A parol variation of a written contract may, however, be set up as a defence to an action for specific performance of the contract; and it depends on the particular circumstances in each case whether the variation is to defeat the plaintiff's title to have specific performance, or whether the court will perform the contract, taking care that the subject-matter of the parol agreement or understanding is carried into effect, so that all parties may have the benefit of what they contracted for (). A contract in writing, and by the law required to be in writing, may in equity be waived or rescinded by a parol agreement (i). Whether it could be so waived or rescinded at law was considered to be a moot, or rather an undecided, point; but this is now immaterial, because if there is any conflict in this matter between the rules of law and equity, the latter will, of course, prevail, by virtue of the provisions of the Judicature Act, 1873 (j). An agreement to waive or rescind may be deduced from conduct (k), as well as from words; but there must be clear evidence of the alleged agreement; and therefore Lord St. Leonards refused to hold a loose conversation by a tenant, in which he stated his interest to be different to that which he claimed under a contract for a donment of the contract (7).

(f) L. R., 10 C. P. 605.

(g) Vide supra, p. 377.

(h) See Smith v. Wheatcroft, 9 Ch. D. 223; and Fry on Specific Performance, 3rd edition, 357.

lease, to amount to an abanAn agreement which the

(i) Fry on Specific Performance, 3rd edition, 469.

(j) 36 & 37 Vict. c. 66, s. 25 (11). (k) Carter v. Dean of Ely, 7 Sim.

211.

(1) Moore v. Crofton, 3 J. & L. 438.