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the contracting parties are not mentioned, or the price to be paid for the work is not specified, or the quantity not named, and the writing consequently does not amount to a contract, oral proof of the additional facts and circumstances necessary to constitute a contract and give effect to the transaction, is admissible. (u) Such evidence does not alter or add to an existing contract, as no contract exists independently of it.

Any mere admission, or averment of a fact also, in writing, may be contradicted by oral testimony. If a bill of exchange or promissory note purports on the face of it to be made for value received, it is competent to the parties to show that no value was received, (x) and if a receipt or acknowledgment of the payment of money has been given, oral evidence is admissible to contradict such receipt or acknowledgment and rebut its legal operation as a discharge from liability. (y) And although oral terms, stipulations, or agreements, made either before the written instrument was completed, or during the time that it was in a state of preparation, cannot be given in evidence, so as to add to, or in any manner vary or qualify, the terms of the written engagement, yet “it is competent to the parties, at any time before breach of the agreement, by a new contract not in writing, to waive and annul the former agreement, so as to prevent either party from recovering on the contract which was in writing." (2)

Oral evidence, offered to show subsequent matter of discharge from liability, affects only the remedy by way of action upon the contract; it does not in any way impugn or alter the terms of the written agreement itself. Admitting the contract, it seeks to show that the party has no right to enforce it. It is admissible consequently on the part of a defendant for the purpose of discharging himself and defeating the action. upon the contract, but cannot be introduced by a plaintiff who comes to have an omission rectified, or to introduce a new term into the written agreement, or to substitute in the place of the original written contract a new contract, to be proved partly by the written agreement, and partly

(u) Meath v. Lord Belfield, 1 Wils. 215. Knapp v. Harden. 1 Gale, 47. Jeffery v. Watson, 1 Stark. N. P. C. 267. Ingram v. Lee, 2 Camp. 521; Bosanquet, J., 2 Sc. N. R. 656. Eden v. Blake, 9 Jurist, 213.

(x) Foster v. Jolly, 1 C. M. & R. 708; 5 Tyr. 239, s. c. Radout v. Bristow, 1 C. & J. 231; 1 Tyr. 84, s. c. Holliday v. Atkinson, 8 D. & R 165; 5 B. & C. 503, s. c.

(y) Straton v. Rastall, 2 T. R. 366. Lampon v. Cooke, 5 B. & Ald. 611. Graves v. Key, 3 B. & Ad. 313. Fairman v. Budd, 5 M. & P. 534; 7 Bing. 574, s. c. Scholey v. Walmsey,

1 Peake N. P. C. 34. Holsten v. Jumpson, 4 Esp., p. 190. Fairmaner v. Budd, 5 M.& P. 540. Skaife v. Jackson, 3 B. & C. 423. By the French law, the contents of a written document may be impeached as false by an original process called inscription de faux; but until that charge is decided, and they are adjudged to be so, credit is given to them provisionally. Pothier, p. 4, c. 1. art. 1. § 3.

(2) Denman, C. J., Goss v. Lord Nugent, 5 B. & Ad. 61; 2 N. & M. 33, s. c.; Lord Eldon, 9 Ves. 250.

M

by subsequent verbal terms engrafted upon it. (a) The admission of such evidence in the last case would have the effect of varying or adding to the terms of the written agreement, and would, moreover, be in direct contravention of the Statute of Frauds; but its admission in the first case is consistent with the contract and with the provisions of the statute. The Statute of Frauds has not altered the situation of a defendant against whom a contract is sought to be enforced; it says that no action shall be brought unless the agreement is in writing; but does not require written evidence of the dissolution of the contract, or of a subsequent discharge from liability, and does not consequently prevent the defendant from giving the same evidence, now that he might have given before the statute. (b)

Effect of altering a simple contract in writing after its execution.Any material alteration of a written contract, made without the privity and assent of the party to be affected by it, at once vitiates and avoids the contract.

Subsequently to the execution of a guarantee, and whilst it was in the possession of the plaintiff, a seal was affixed to the defendant's signature, giving to the guarantee the character and appearance of a deed, and it was held that this was such an alteration in a material particular as avoided and vitiated the contract. (c) When a bill or note is produced, displaying a material alteration upon the face of it, the plaintiff must disclose the circumstances under which it was made, and show that it is not such an alteration as vitiates the security, or renders a new stamp necessary. (d) But if the alteration is immaterial and does not affect the plaintiff's right of action, no explanation of it is required. (e)

Simple contracts governed by the same rules of interpretation as deeds." The same sense," observes Lord Ellenborough, C. J., " is to be put upon the words of a contract in an instrument not under seal as would be put upon the same words in any instrument under seal; for the same intention must be collected from the same words of a contract in writing whether with or without a seal." (ƒ) "When the several cases respecting the construction of written instruments are closely examined, it will be found that the apparent conflict of authorities arises more from the variety of terms employed by the parties themselves in

(a) Stead v. Dawber, 10 Ad. & E. 57. Marshall v. Lynn, 6 M. & W. 109.

(b) Sugd. on Powers, 238, 232, ed. 1839; 5 Law Mag., 375-385; 14 Ves. 524; 1 Sch. & Lef. 39; 1 Taunt. 509.; 7 Ad. & E. 49. (c) Davidson v. Cooper, 11 M. & W. 778, 779;

13 Law, J., N. S. (Excheq.) 277, s. c. in error. (d) Clifford v. Lady Parker, Sc. N. R. 234. Cariss v. Tattersall, ib. 260.

(e) Earl of Falmouth, v. Roberts, 9 M. & W.

469.

(f) Seddon v. Senate, 13 East, 73.

framing their contracts, than from difference of opinion in the judges who interpret them. The whole contract must be taken together, and due effect given to the several clauses that counteract or qualify each other, and it often happens that the same expressions will bear different meanings, and require a different interpretation, according to the context of the instrument in which they are found. The intention of the contracting parties must be collected from the whole scope of the instrument." (g) Agreements for leases.-In order to determine whether a contract for the hiring and letting of land entered into prior to the coming into operation of the transfer of property act, is an actual lease and operates as a present demise, regard must be had to the apparent intention of the parties as it is to be collected from the whole agreement, construed in connexion with surrounding circumstances, and the situation and acts of the parties themselves at the time of the making of the contract. (h) Where the words are de præsenti, I demise, &c., there is, of course, an immediate lease, provided the situation and circumstances of the parties. favour such a construction. Where the words are in the future tense, and the agreement is that the party shall hold and enjoy, and he is afterwards put into actual possession of the land, the landlord shall not afterwards turn him out of possession, and say that it was not a present demise; for the permitting the party to enter is strong evidence to show that the landlord intended to give a present interest. But where the words themselves do not necessarily imply it, and where possession is not given and there is no other act to manifest such an intention, then it is merely an executory contract" (i) And an agreement may operate as an actual demise and convey a present interest in the land, although there may be an express stipulation in the agreement for the future execution of a lease. (k) No precise words or technical form of language are requisite to constitute a present demise. An estate or term of years in the land may be created and vested in a third party, by giving him a license to enjoy a house, or making an agreement with him that he "shall reside" therein, provided some certain rent or specified service is reserved,

(g) Tindal, C. J., Belcher v. Capper, 5 Sc. N. R. 316; Parke, B., 6 M. & W. 104. Palmer v. Temple, 9 Ad. & E. 508.

(h) Tindal, C. J., 5 Sc. 530, Curling v. Mills, 7 Sc. N. R. 725. Gore v. Lloyd, 12 M. & W. 479. Alderman v. Neate, 4 M. & W. 720. Doe dem. Morgan v. Powell, 14 Law J., N.

S. 5.

() Lord Kenyon, C. J., and Ashurst, J., Doe v. Ashburner, 5 T. R. 167, 168. Perring

v. Brook, 7 C. & P. 362. Bicknell v. Hood, 5 M.& W. 104,108. Brashier v. Jackson, 6 M. & W.549. (k) Doe d. Pearson, v. Ries, 1 M. & Sc. 259; 8 Bing. 178, s. c. Poole v. Bentley, 12 East, 168. Warman v. Faithful, 5 B. & Ad. 1042; 3 N. & M. 137. s. c. Alderman v Neate, 4 M. & W. 720. Pinero v. Judson, 3 M. & P. 504; 6 Bing. 206, s. c. Wilson v Chisholm, 4 C. & P. 474. Parke, B., Chapman v. Towner, 6. M. & W. 103.

"If

or something is given as the consideration for the contract. (7) there are any words showing a present intention that one is to give and the other to have possession for a determinate term, a tenancy is created," (m) and this intention may be manifested by expressions contained in a series of letters, as well as by the formal words of a single instrument; (n) also by the nature and extent of the lessor's interest in the land, the things done and to be done by virtue of the contract, and the peculiar circumstances of each case. And, on the other hand, although there be precise and formal words of present demise, yet if you collect from the face of the entire contract a contrary intention, the instrument shall be considered only an agreement for a future lease, and shall not operate as a present demise. (0)

In the case of simple contracts, as in the case of deeds, the courts will draw all such plain and obvious inferences as appear to be necessary to give effect to the contract. Thus, where a bill of exchange was made for twenty-five, seven shillings and three pence, the courts construed it to mean twenty-five pounds, seventeen, &c. (p) And where a written undertaking was given to a tailor to pay him " the sum of 67. 4s. for a suit of ordered by Daniel Page," it was construed, in connexion with surrounding circumstances, to mean a suit of clothes; (q) and when a promissory note contained the words, "I promise not to pay," the word not was rejected.

Custom and usage have the same influence upon the exposition of simple contracts that they have upon the exposition of contracts under seal. The known and received usage of trade, and the established course of mercantile dealing, are considered to be tacitly annexed to the terms of a mercantile contract, if there be no words therein expressly controlling or excluding the ordinary operation of the usage, and parol evidence thereof may consequently be brought in aid of the written instrument. (r) Thus, although a bill of exchange is on the face of it payable on a day certain, yet the three additional days of grace, accorded by the known custom of merchants, are permitted to be annexed to the terms of the written instrument, and made a part of the contract.

(1) Co. Litt., 45 b.; Bac. Ab. (Leases, K.) Yates, J., Right d. Green v. Proctor, 4 Burr. 2209.

(m) Parke, B., Bicknell v. Hood, 5 M. & W. 108.

(n) Chapman v. Bluck, 5 Scott., 531; 4 Bing. N. S. 187, s. c. Jones v. Reynolds, 1 Ad. & E. N. S. 506.

(0) Morgan v. Bissell, 3 Taunt. 72. Hayward v. Haswell, 6 Ad. & E. 273; 1 N. & P.

411, s. c. Rawson v. Eicke, 7 Ad. & E. 451; 2
N. &. P. 423, s. c. Dunk v. Hunter, 5 B. & Ald.
326; 11 M. & W. 407; 4 Ad. & E. N. S. 367.
(p) Phippsv. Tanner, 5 C. & P. 488. Elliott's
case, 2 East, P. C. 951.

(q) Jarvis v. Wilkins, 7 M. &. W. 410.

(r) Parke, B., Hutton v. Warren, 1 M. & W. 475. Bowne v. Gatcliffe, 3 Sc. N. R. 40, 41. Clarke v. Roystone, 14 Law J. N. S. Excheq. 143.

The general warranty in a policy of insurance to sail with convoy, is construed, according to the usage of merchants, to depart with convoy from the nearest customary place of rendezvous where convoys are to be had. (8)

When a workman is hired for a year, to work at a particular trade, under a written agreement which says nothing as to any period of absence to be allowed to the workman, oral evidence may be given to show that it is the custom of the particular trade for the workmen employed in it to take certain holidays, and to absent themselves on such occasion from their work, without the permission of their masters (t) But the custom and usage, sought to be established, must be shown to be a generally recognised practice and usage, with reference to the trade and business, out of which the written contract arises and to which it relates, and must not exist merely in the "judgment and opinion of the witnesses.” (u)

The meaning of all words and terms of art, and specifications of quantity, weight, and measure, are regulated and controlled by local custom, unless the terms have been selected, and a definite meaning given to them. by the legislature. (x) Evidence of general usage, in the trade to which the contract refers, is admissible to give a particular and peculiar sense to the words employed, as the parties may be presumed to have contracted in conformity with the custom, and to have used the words in their customary trade acceptation.

The memorandum of a contract of sale was in the terms following:"Sold, Mr. W. S. 18 pockets of Kent hops, at 100s. ;" and it was held that oral evidence was admissible to show that, by the usage of trade, a contract so worded was understood to mean 57. per cwt., and that the hops consequently were to be weighed, and the price ascertained, according to the weight of the article, and that the 100s. was not to be paid per pocket, without reference to the weight of the contents of such pocket. (y) But to vary the meaning of plain words, the existence of the custom must be " clear, cogent, and irresistible." Two witnesses stated that the usual practice of the trade to Sydney was to consider steerage passengers as " cargo," and their passage money as "freight;" but could give no instances of such construction within their own knowledge, and it was

(8) Lethulier's case, 2 Salk. 443. Hutchinson v. Bowker, 5 M. & W. 535; Domat. 36, § 9. Scott v. Bourdillon, 5 B. & P. 213.

(t) The Queen v. Stoke-upon-Trent, 13 Law J. N. S. (Q. B.) 117.

(u) Tindal, C. J., 13 Law J, N. S. (C. P.)

(x) Master of St. Cross v. Ld. Howard de Walden, 6 T. R. 338. Hocken v. Cooke, 4 T. R. 314, 750; 3 T. R. 271. Taylor v. Briggs, 2 C. & P. 525. Magee v. Atkinson, 2 M. & W. 440.

(y) Spicer v. Cooper, 1 Ad. & E .N.S 424

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