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 (p). 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 any consideration, it may be shown to have been founded on a valuable consideration (r); 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 (s). 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 (t), 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 (u), 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, 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 (x).

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 (y); nor can a charter-party be varied by a parol agreement substituting one place of destination for another (≈), unless such an agreement can be treated, not as a new term, but as a new and distinct contract (a); nor can a release be varied by evidence of verbal negotiations prior to such release (b).

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 (c), and parol evidence is admissible to show that there was a mistake in the date of a charter-party (d), a deed (e) or a will (ƒ); but the day appointed in a written contract for the performance of a certain act, such as the completion of a purchase, cannot be altered by extrinsic evidence (g). Parol evidence is admissible to prove that, owing to a subsequent agreement extending the time for payment, there has been no default within the meaning of a mortgage deed ().

The admissibility of extrinsic evidence to affect wills will be treated in the following chapter. Some instances will,

(x) Per Williams, J., R. v. Stokeupon-Trent, 5 Q. B. 308.

(y) Kame v. Knightley, Skin. 54. (z) Leslie v. De la Torre, cited in White v. Parker, 12 East, 383.

(a) White v. Parker, supra.

(b) Mercantile Bank of Sydney v. Taylor, (1893) A. C. 317.

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

(d) Hall v. Cazenove, 4 East, 476. (e) Payne v. Hughes, 10 Ex. 430. (f) Reffell v. Reffell, L. R., 1 P. & D. 139.

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

(h) Albert v. Grosvenor Investment Co., L. R., 3 Q. B. 123.

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 quality of the timber would vary the agreement contained in the written conditions of sale" (i). This case is general in its 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 ().

Extrinsic evidence of a collateral oral agreement. 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 (7), and where there is a distinct collateral oral agreement between the parties, it is immaterial whether it precedes or is contemporaneous with

(i) Powell v. Edmunds, 12 East, 6. (k) Eden v. Blake, 13 M. & W.

614.

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

the written agreement (m). 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 (n). 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 (o). 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 (p); and a policy of insurance cannot be varied by evidence of oral or written declarations which were made to the insurer, but not embodied in the policy (q). The valuation of a ship in a valued policy is, in the absence of fraud or wagering, conclusive between the parties for the purposes of the contract ().

Where a deed conveys Blackacre, as specified in a schedule and map annexed, parol evidence will not be received to show that Whiteacre, which is not mentioned in the schedule or map, has always been part of Blackacre (s). When several classes of goods, of superior and inferior quality, are comprised under one generic name, and a written contract is made to supply goods of that 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 (t).

In order to avoid liability 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 (u);

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

(n) Greaves v. Ashlin, 3 Camp. 426. (0) Harnor v. Groves, 15 C. B. 667. (p) Nichol v. Godts, 10 Ex. 191. (4) Halhead v. Young, 6 E. & B. 312.

(r) North of England Ship Insurance Co. v. Armstrong, L. R., 5 Q. B. 244; cf. Burnand v. Rodocanachi, 7 App. Cas. 333.

(8) Barton v. Dawes, 10 C. B. 261.
(t) Smith v. Jeffryes, 15 M. &W.561.
(u) Higgins v. Senior, 8 M. & W.

834.

nor can he show that a contract, signed by him expressly as a principal, was made by him as an agent for the party to the action (). If the contract appears to have been made merely in his own name, without addition, it may be shown that he was in fact an agent for another in order to make such other liable (y), as this does not contradict the contract, nor does it make any difference if the name of the principal is disclosed at the time the contract is made (z).

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 (a); but where a defendant had signed an agreement under seal as agent for a firm, whereby the firm agreed to make certain payments to the plaintiffs, which agreement contained a clause to the effect that the defendant guaranteed such payments, although the defendant was not named as a party to the agreement, extrinsic evidence was held admissible by the Court of Appeal to prove that the defendant intended to sign on his own behalf as well as for his principals so as to make him liable as a guarantor (b). It may, however, be observed that this decision does not establish any such principle as that the capacity in which a man signs a document is always provable by extrinsic evidence.

On similar grounds, evidence of a custom cannot be received to vary the express language of a contract (c).

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