A Treatise on the Law of Contracts and Rights and Liabilities Ex Contractu

ever, if the contract is produced duly stamped, inquire when the stamp was affixed, or whether the proper penalty has been paid. (a)

Receipts may be stamped within fourteen days after they have been given, or bear date, on payment of the duty and a penalty of 107.

By 55 Geo. 3, c. 184, s. 10, it is enacted, that all instruments having wrong stamps, but of sufficient value, shall be valid, and require neither restamping nor payment of further duty or penalty, except in cases where the stamp or stamps used on such instrument shall have been specially appropriated to any other instrument, by having its name on the face thereof, as in the case of receipt stamps. When a stamp, wrong upon the face of it, has been used, the correction of the mistake is regulated and provided for, in the case of bills and notes, by 37 Geo. 3, c. 136, s. 5, which enacts, that a bill or note, stamped with a stamp of equal or superior value to that which it ought to have had, but with a wrong denomination on the face of it, may be properly stamped on payment of a penalty; but if such stamp be of inferior value, the defect cannot be remedied. The commissioners of stamps have no authority to impose the proper stamp in the last case, and no stamp that they can affix will render the instrument admissible in evidence. (b) But all contracts and agreements which have been stamped with stamps of less than the legal amount, may be duly stamped at any time before they are given in evidence, on payment of the duty and the penalty, as in the case of unstamped instruments.

If an unstamped contract is brought within sixty days, or a contract stamped with a wrong stamp is brought within one year after execution to be stamped, the commissioners may remit the penalty. (c)

If it appears at a trial on the plaintiff's own showing, or from the crossexamination of the plaintiff's witness, that the cause of action grows out of a written contract, the writing must be produced, and if it is not duly stamped the plaintiff will be nonsuited. (d) But if the plaintiff can get through his case without showing, or being compelled to disclose by crossexamination, that there is a written agreement, he cannot be nonsuited by the defendant's producing an unstamped written contract relating to the subject matter of the action; (e) nor is the defendant ever permitted to produce an unstamped contract for the purpose of qualifying or defeating a case established by the plaintiff.

(a) The King v. Preston, 5 B. & C. 1028.

(b) Green v. Davies, 4 B. & C. 235; 6 D. & R. 306, s. c.

(d) Brewer v. Palmer, 3 Esp. 213.

Hodges

v. Drakeford, 5 B. & P. 273. Fenn v. Griffiths, 4 M. & P. 299; 6 Bing. 533, s. c. Buxton v. Cornish, 12 M. & W. 426; 13 Law, J., N. S., Excheq. 91.

(e) Fielder v. Ray, 3 M. & P. 659; Bing. 332, s. c. ; 2 Sc. N. R. 64.

An action was brought against the defendant for neglecting to occupy and pay rent for certain apartments which he had agreed to hire of the plaintiff. In support of this action, the plaintiff produced in evidence a letter from the defendant, agreeing to take the apartments, stamped with an agreement stamp; and also the copy of a letter addressed to the defendant by the plaintiff, in which the latter agreed to let him the rooms. The letter and copy having been read, the defendant attempted to show that the contract had been varied and altered by other letters of the same date; and attempted to put in an unstamped letter, addressed to him by the plaintiff on the 25th of February, which he alleged to be a continuation of the first letter, and part of the same transaction; but it was held, that if the agreement was to be collected from the two letters, the first letter ought to have been stamped with a 17. 15s. stamp, to render the second admissible; and as it was stamped with a 17. agreement stamp only, and the letter produced by the defendant was not stamped at all, such second letter could not be admitted in evidence. (f)

An unstamped writing cannot be given in evidence for the purpose of being "made good, useful, or available in law; (g) but it may be introduced for the purpose of showing that it is a mere piece of waste paper, from the very circumstance of its being unstamped, or for the purpose of serving some collateral purpose. A forged bill, for example, may be given in evidence as a proof of forgery or larceny, or bribery at an election, to support an action of debt for the penalty, or to prove usury, or to show that a transaction is void and illegal, as the object of its introduction in evidence is not in such cases to set it up and establish it as a binding contract, but rather to destroy it as such. (h)

(f) Atherstone v. Bostock, 2 Sc. N. R. 642. (g) Williams v. Gerry, 10 M. & W. 296; 2 Dowl. N. s. 209; 9 B. & C. 375; 4 M. & R. 287.

(h) Smart v. Nokes, 7 Sc. N. R. 786, 794; 2 T. R. 606, n.; 1 Leach, C. C. 392; 4 M. & W. 361.

148

CHAPTER V.

OF THE LEGAL FORCE AND EFFECT, AND OF THE INTERPRETATION, OF DEEDS AND SIMPLE CONTRACTS.

SECTION I.-Deeds-Estoppel by deed confined to the parties to the contract-When the averment of a fact by one party may be shown to be false by the other-Parol evidence of fraud or illegality to defeat an action upon a deed-Of the interpretation of deeds-Of the ordinary rules of interpretation-The general intention is to prevail over the particular expression-Transposition of words and clauses to give effect to the general intention-Parol evidence to explain the meaning of doubtful words and terms of art-Interpretation in connexion with surrounding circumstances— Latent ambiguity-Patent ambiguity of intention, and the inadmissibility of parol evidence to cure it-Of inferences to effectuate an obvious intention, and sustain the contract-Customary rights impliedly annexed to the subject matter of the contract-Parol evidence of such customary rights-Exclusion of the custom by express stipulation-Influence of custom upon the meaning and interpretation of words-Of covenants-Grants-Bonds and obligations.

SECTION II.-Simple contracts—Inadmissibility of oral evidence to add to or alter a contract in writing-When admissible in aid of insufficient written evidence of a contract, or to show a subsequent release and discharge from liability-Simple contracts governed by the same rules of interpretation as deeds Agreements for leases - Warranties - Continuing guarantees – Wagers.

SECTION III.—Of penalties aud liquidated damages—Penal obligations-Relief from penalties on money bonds in equity, and also at common law-Relief by the statute of Anne-Relief from penalties for the non-performance of covenants and agreements in equity, and by stat. Wm. 3— Liquidated damages-Agreement for the payment of a sum in solido as the ascertained and settled damage-When the sum named is a penalty, and when it may be recovered as the liquidated damage.

SECTION I.

OF THE LEGAL FORCE AND EFFECT, AND OF THE INTERPRETATION OF

DEEDS.

Deeds.-No mere written agreement or oral stipulation entered into between the parties to a deed at the time of the making and execution

thereof, can be given in evidence to control, or qualify, or enlarge, or in any way affect the express terms of the contract, such, for example, as that an annuity deed was to be subject to redemption, or that the time for the performance of the contract was to be enlarged; nor can the operation of a deed be restricted, or the liability created by it be lessened or discharged, by any subsequent contract or agreement in writing not under seal. (a) No rule of law is better established than this, that a contract under seal can only be discharged by an instrument of equal force and validity-" Quodque dissolvitur eodem ligamine quo ligatum est. (b)

A tenant covenanted in an indenture of demise under seal, to yield up at the expiration of his term all erections and improvements that should during the term be erected and made upon the premises. About twenty years after the granting of the lease, the tenant offered to erect a greenhouse and conservatory, provided the landlord would permit him to remove it at the expiration of the term; the landlord, by letter, promised so to do, and the greenhouse was built. The landlord died, the term expired, and the tenant removed the greenhouse; whereupon an action was brought against him by the landlord's executor upon the covenant, and it was held that the parol license could not operate as a discharge of the covenant, and that the tenant was responsible for the breach thereof. (c)

Estoppel by deed confined to the parties to the contract.—The rule of law which prevents a party from disputing or contradicting what he has affirmed or declared by deed, does not extend to strangers to the contract. Where the public, or third persons for example, have an interest in the real nature of a transaction under seal between two or more parties, they are not bound by the representations and averments of those parties, but may impeach them, and contradict them by parol or oral testimony. Thus, where a deed of conveyance expressed 287. to be the purchase money for an estate, it was held that it was competent to one of two contending parties to show that the real consideration was 307., in order to establish a settlement under the statute. (d) A party to a deed, moreover, is not estopped in an action by another party not founded on the deed, and wholly collateral to it, from disputing the truth of certain facts recited and set forth in such deed. (e) And as between the parties themselves any averment of a fact made by one of the parties in the nature of a warranty to the other, may be contradicted and shown to be false by that other. If

(a) 1 H. Bl. 689; 1 Br. C. C. 92; 1 B. & C. 704; 3 T. R. 590; 12 Ad. & E. 442; 4 P. & D. 270, s. c.; 1 Ves. jun. 241; 2 Sc. N. R. 41; Ib. 466.

(b) Tindal, C. J., 3 Sc. N. R. 215.

(e) Carpenter v. Buller, 8 M. & W. 209.

a deed of assignment, for example, recites that the assignor is possessed of some estate or interest, such as a lease, or a patent right, and then proceeds to assign such estate or interest, and the assignee, in consideration of the assignment, enters into certain covenants upon which an action is brought, the assignee is not estopped from showing that the recital was false, and that no such estate or interest was vested in the assignor, and transferred by virtue of the deed. (f) But the assignor himself, who makes the averment, would not be permitted to contradict or dispute the fact recited. (g)

Parol evidence of fraud or illegality may be given for the purpose of showing that the plaintiff ought not to have the assistance of a court of law for the enforcement of the contract. "If duress be pleaded, or a false reading of the deed, you avoid the deed at law by parol evidence, but then these facts are collateral to the import of the instrument, they are dehors the contract; they do not vary or alter it." (h) If the deed be made and executed in furtherance of immorality and vice, seduction or fornication; if it contravenes the general policy of the law, or the provisions of an act of parliament, or the bankrupt and insolvent laws; if it tends to injure the public service, or operates in restraint of trade or marriage, the courts of law will decline to give their assistance for its enforcement, and the contract consequently remains a dead letter, and is said to have no legal existence or power. If the defect appears upon the face of the deed, it is at once fatal to an action upon the instrument; and if it does not so appear, the fact of its existence may be established through the medium of parol or oral testimony. You may plead the facts which show the contract to be wicked and void, and the cause of action to arise e turpi causâ; and the oral evidence is offered not to affect the terms of the contract itself, but to destroy the remedy by way of action upon it." (i) It is competent also to the parties to a deed to show by parol testimony that certain formalities required by act of parliament have not been complied with, and for that purpose to contradict by evidence upon oath statements and assertions of matters of fact contained in the deed itself, such as that the consideration for the grant of an annuity required by the annuity act (17 Geo. 3, c. 26) to be stated and set forth in the deed, has not been truly stated. (k) Anything, in short, which shows a deed to be void in law, may be averred and proved through the medium of oral testimony.

(f) Hayne v. Maltby, 3 T. R. 438, 441, 442; Vin. Abr. Estoppel M. 455.

(g) Oldham v. Langmead, cited ib. p. 439, 441.

(h) Davis v. Symonds, 1 Cox. 405.

(i) Collins v. Blantern, 2 Wils. 547. Lightfoot v. Tenant, 1 B. & P. 555. Holman v. Johnson, Cowp. 343. Doe dem. Small v. Allen, 8 T. R. 148; Cod. lib. 2, tit. 1, 6.

(k) Kelfe v. Ambrosse, 7 T. R. 551.

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