Page images

The admissibility of extrinsic evidence to affect wills will be treated in the following chapter. Some instances will now be 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, C. J., 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 quantity of the timber would vary the agreement contained in the written conditions of sale."1

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.2

Extrinsic evidence is inadmissible to prove an oral contract contemporaneous with, and purporting to qualify, a written contract, as to show an agreement made contemporaneously with a promissory note that the maker should not be liable when it becomes due.

1 Powell v. Edmunds, 12 East, 6.
2 Eden v. Blake, 13 M. & W. 614.

But after the note is made, such a contract, made on valid consideration, may be proved.1

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.2

So, 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.3

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.1

Where 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.5

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; 6 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. 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.8

1 Hoare v. Graham, 3 Camp. 57.
2 Greaves v. Ashlin, 3 Camp. 426.
3 Harnor v. Groves, 24 L. J. 53, C. P.
Barton v. Dawes, 10 C. B. 261.

5 Smith v. Jeffryes, 15 M. & W. 561.
Higgins v. Senior, 8 M. & W. 834.
7 Humble v. Hunter, 12 Q. B. 310.
8 Patteson, J., ibid.

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.1

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, 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 juxta-position 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

1 Supra, p. 333, and see Goss v. Lord Nugent, 5 B. & Ad. 58; Stead v. Dawber, 10 A. & El. 17.

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.



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

VII. 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. It may be stated confidently, that in both cases it is impossible to effect this agreement; but, without investigating all the subtleties of the doctrine, it will be attempted to define its general scope and practical application.

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,

« EelmineJätka »