CHAP. V. When parol evidence admissible to tions of con tract. "The rule is," said Maule, J., "that where a contract, Nor is parol evidence admissible to show the name of the person to whom a guarantee is given. (c) But although, where there is a concluded contract between the parties, parol evidence is not admissible to prove stipula- add to or vary the terms, if there has been no actual memorandum, but writings are simply offered as evidence of the terms, parol evidence is admissible to show an additional stipulation. Thus in Ford v. Yates (d) the contract was as follows: "Of E. Y. 39 pocket Sussex hops, Springett's five pocket, Kenward's 78 J. Springett's to wait orders," it was held in an action for non-delivery of the hops that the contract imported a sale for ready money, and that parol evidence was not admissible to (a) 2 Ex, 111. (b) Harnor v. Groves, 15 C. B. 667; 24 L. J. C. P. 53; and see Boydell v. Drummond, 11 East, 142; Fitzmaurice v. Bayley, 9 H. L. C. 78; Holmes v. Mitchell, 7 C. B. (N. S.) 361; 28 L. J. C. P. 301. (c) Williams v. Lake, 2 E. & E. 349; 29 L. J. Q. B. 1. (d) 2 Man. & Gr. 549. show that by the usual course of dealing between the parties, the hops were sold on a credit of six months. In Lockett v. Nicklin, (a) on the other hand, the defendant ordered goods by letter which did not mention any time for payment, the plaintiff sent the goods and an invoice. It was held that parol evidence was admissible to show that the goods were supplied on credit, the letter not amounting to a valid contract within the Statute of Frauds. Parol evidence is not admissible to connect separate documents, but they must either be actually attached to each other or they must distinctly refer to each other. (b) In Baumann v. James (c) the Lords' Justices held that parol evidence was admissible to connect separate documents. In that case a tenant applied to his landlord's solicitors as to the renewal of his lease. The solicitors sent him a report by a surveyor, who recommended the granting of a lease at a given rent, if certain repairs were done by the tenant. The tenant wrote back assenting to the repairs and rent, but asking for a term of twenty-one years. No final agreement was come to, but some months afterwards, a negotiation having proceeded between the tenant and landlord, without the intervention of the solicitor, the landlord wrote a letter promising the tenant a lease for fourteen years "at the rent and terms agreed upon," to which the tenant wrote (a) 2 Ex. 93. (b) Ante p. 254, and see Hinde v. Whitehouse, 7 East, 558; Cooper v. Smith, 15 East, 103; Kenworthy v. Schofield, 2 B. & C. 945; Richards v. Porter, 6 B. & C. 437; Sarl v. Bourdillon, 1 C. B. (N. S.) 188; Chapman v. Callis, 9 C. B. (N. S.) 769; (c) L. R. 3 Ch. 508. CHAP. V. Parol evidence to connect documents. not admissible separate CHAP. V. Parol evidence admissible to explain imperfect reference. Cases where parol evidence back an unqualified acceptance. It was argued on the authority of Skelton v. Cole(a) and Clinan v. Cooke (b) that parol evidence was not admissible to connect the report and the tenant's previous letter with the subsequent letters; but the court, on the authorities of Ridgway v. Wharton, (c) admitted the evidence, and held that its being conclusively established that there never had been any other rent or terms agreed upon than those mentioned in the report, there was a sufficient memorandum in writing to satisfy the statute. It does not appear, however, from the report that any of the cases referred to above (d) were cited to the court, and it is submitted that the case of Ridgway v. Wharton is not in fact an authority for admitting parol evidence to connect separate papers which do not refer to each other. All that was decided in that case was that if there is a signed paper, which, though agreeing to do something, leaves the subject matter of the agreement unexplained, but refers to another paper which contains the full particulars of the explanation, the two may be connected together so as to constitute a valid contract. Parol evidence is admissible to explain an imperfect reference in one document to another. (e) Thus, where an agreement refers to a plan as the plan agreed upon, parol evidence is admissible to identify it. (ƒ) Parol evidence is not admissible to show a waiver of not admissible. or alteration in some of the stipulations in a contract,(9) (a) 1 De G. & J. 587. (b) 1 Sch. & Lef. 22. t (c) 6 H. L. C. 238. (e) Saunderson v. Jackson, 2 8 Hare, 56; Bolckow v. Seymour, 17 C. B. (N. S.) 117 ; Jackson v. Oglander, 2 H. & M. 472. (f) Horsfall v. Hodges, 2 Coop. C. C. 115 n. (a). (g) Harvey v. Grabham, 5 A. & E. 61. nor to prove that a portion of the price agreed to be paid for goods, was, in consideration of an undertaking to deliver them at a specified time, fixed above the market price; (a) nor to prove a parol agreement for extending the time for delivery of goods, (b) or for changing the place of delivery of goods. (c) Where the day for the completion of the purchase of an interest in land is inserted in a written contract, it cannot be waived by oral agreement, and another day substituted in its place, "for to allow the substitution of a new stipulation as to the time of completing the contract, by reason of a subsequent oral agreement between the parties to that effect, in lieu of a stipulation as to time contained in the written agreement signed by the parties, is virtually and substantially to allow an action to be brought on an agreement relating to the sale of land, partly in writing signed by the parties, and partly not in writing but by parol only, and amounts to a contravention of the Statute of Frauds." (d) Most of the foregoing cases were discussed in Hickman v. Haynes, (e) where Lindley, J., 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 to be so by the Statute of Frauds." So also parol evidence is not admissible to show a verbal agreement between the parties that the vendee R. 1 Ex. 117; ib. 2 Ex. 135, in (a) Brady v. Oastler, 3 H. & C. 112, per Pollock, C.B. and Bramwell and Channell, BB. diss. Martin, B. (b) Stead v. Dawber, 10 A. & E. 57; Marshall v. Lynn, 6 M. & W. 109; Noble v. Ward, L. error. (c) Moore v. Campbell, 10 Ex. 323. (d) Stowell v. Robinson, 3 Bing. (N. C.) 928; 5 Sc. 212. (e) L. R. 10, C. P. 598, 605. CHAP. V. CHAP. V. Parol evidence admissible to show that no contract intended, or that it was conditional, or that the agreement does not state contract, should waive his right to a good title as to one of several lots of land sold under an agreement in writing.(a) A document purporting to be a contract signed by the parties is not necessarily so; and it is competent for either of the parties to show by parol evidence, that it was not their intention in signing that it should operate as a contract, and that the real contract between them was not in writing, (b) or to show that the contract was only to bind upon the happening of a certain event. (c) So, although parol evidence is not admissible to add to or vary the written agreement, it is admissible on the part of the defendants to show that the writing only contains some of the terms of the contract. Thus, where a sample of wool was left at a broker's for sale, and on the sale it was stipulated by the purchaser that the wool should be delivered in good dry condition, and on the same day the broker sent the vendor a sold note of the contract, which, however, omitted all mention of the stipulation that the wool was to be in good dry condition, and no note of it was sent by the broker to the purchaser, parol evidence was admitted to show the omission of the stipulation. (d) And where a term is not expressly contained in a contract, but is implied in it, upon the assumption of an intention in the parties not declared in the written instrument, parol evidence, with reference to such a term (a) Goss v. Lord Nugent, 5 B. & Ad. 58; Harvey v. Grabham, 5 A. & E. 74. (b) Rogers v. Hadley, 2 H. & C. 227; and see Bolckow v. Seymour, 17 C. B. (N. S.) 120. (c) Pym v. Campbell, 6 E. & B. 370; 25 L. J. Q. B. 277; Furness v. Meek, 27 L. J. Ex. 34. (d) Pitts v. Beckett, 13 M. & W. 743. See further post, chapter on Specific Performance. |