Page images
PDF
EPUB

CHAP. V.

introduced into the contract from an assumed intention of the parties, of extrinsic facts to negative or qualify such intention is admissible.(a) Again, where on a sale of goods the price is not or to prove

that price stated, parol evidence is admissible to show that a price agreed upon. was in fact agreed upon, the result of which is to invalidate the contract; for as we have seen (b) it is one of the requisites to the validity of the memorandum that the price if agreed upon should be stated. (c) It is not quite clear whether parol evidence is admis- Whether ad

missible to sible to show a verbal agreement that a contract in show abandon

ment of conwriting shall be abandoned. (d) If the parol agreement is

tract? invalid under the statute, it will not affect an implied rescission of the contract in writing. “Where,” said Willes, J., “parties enter into a contract which would have the effect of rescinding a previous one, but which cannot operate according to their intention, the new contract shall not operate to affect the previously existing right.” (e)

Parol evidence is admissible to explain a latent but Parol evidence not a patent ambiguity in a written agreement. Thus, explain latent where to an action for not accepting cotton which the but not patent defendant bought of the plaintiff, “to arrive ex Peerless

admissible to

(a) Burges v. Wickham, 3 B. 5 B. & Ad. 64; Harvey v. Grab& S. 669, per Cockburn, C.J.; ham, 5 A. & E. 61; Price v. and see Clapham v. Langton, Dyer, 17 Ves. 356; Sanderson 34 L, J. Q. B. 46.

v. Graves, L. R. 10 Ex. 234. () Ante, p. 231.

(e) Noble v. Ward, L. R. 1 (C) Elmore v. Kingscote, 5 B. Ex. 117; and see Moore v. & C. 583; Goodman v. Griffiths, Campbell, 10 Ex. 323; 1 H. & N. 574; 26 L. J. Ex. further Ogle v. Earl Vane, L. 145 ; Acebal v. Levy, 10 Bing. R. 2 Q. B. 275; Leather Cloth 376.

Co. v. Hieronimus, L. R. 10 Q. (d) See Bellv. Howard, 9 B. 140; Hickman v. Haynes, ib. Mod. 305; Goss v. Lord Nugent, 10 C. P. 598.

see

Chap. V. from Bombay," the defendant pleaded that he meant

a ship called the “Peerless" which sailed from Bombay in October, and the plaintiff was not ready to deliver any cotton which arrived by that ship, but only cotton which arrived by another ship called the “Peerless,” which sailed from Bombay in December; it was held that the plea was a good answer to the action. (a)

But where an agreement for a lease of a farm referred to a paper containing the terms, and a bill was filed for specific performance according to such clauses as had been read over to the plaintiff, it was held that parol evidence was not admissible to show what were the

clauses.(b) Parol evidence Parol evidence has been admitted to show, in an action admissible to explain omis. of trover for goods, that by the mistake of a broker sion in bought the bought and sold notes were

so worded as not to and notes ; include stock-in-trade and materials, which were in

tended to be included by both the plaintiff and the defendant, and which the plaintiff had taken posses

sion of.(c) to show

So also parol evidence has been admitted to show the situation of parties;

situation of the parties at the time the writing was made and the circumstances, e.g. to show the trades carried on by the plaintiff and defendant, in order to prove that the relation of buyer and seller existed; (d) to explain the meaning of abbreviations used in the written agree

(a) Raffles v. Wichelhaus, 2 & W. 857 ; Goldshede v. Svar, H. & C. 906; and see Stokes v. 1 Exch. 154. Moore, 1 Cox, 221 ; and as to (b) Brodie v. St. Paul, 1 Ves. the admissibility of parol evi. J. 326. dence to explain a latent am- (©) Steele v. Haddock, 10 Ex. biguity in a guarantee see 643. Haigh v. Brooks, 10 A. & E. (d) Newell *. Radford, L. R. 309; Butcher v. Stewart, 11 M. 3 C. P. 52.

ment; (a) to prove that a written contract for the sale CHAP. V. of goods purporting to be made between a vendor and purchaser, was on the part of the alleged purchaser made by him only as agent for a third party ;(b) to prove facts material to the construction of the agreement; (c) to show that, according to mercantile usage, apparent variances between bought and sold notes are in fact immaterial, and not such as would deceive merchants. (d) Upon the same principle, parol evidence is admissible to explain

subject to identify the subject matter of the contract, e.g. to ex- matter; plain the meaning of the words “for iron received” in a guarantee; (e) to ascertain the number of acres agreed " to be let” in an agreement for a lease ; (f) to prove the amount of a debt guaranteed, (g) the locality over which a covenant in restraint of trade extends,(h) or what is "the lease” referred to in an agreement to obtain a lease.(0) So parol evidence of a conversation between the plaintiff's and defendant's agent has been admitted to show what was meant by the expression “your wool,” in a letter written by defendant's agent to the plaintiff, upon which letter the contract was based ;(k) and where

(a) Sweet v. Lee, 3 Man. & (e) Colbourn v. Dawson, 10 G. 466; 4 Sc. (N. R.) 77; and C. B. 765. see Bainbridge v. Wade, 16 Q. (f) Shannon v. Bradstreet, 1 B. 99.

Sch. & Lef. 73. (6) Wilson v. Hart, 7 Taunt. (9) Bateman v. Phillips, 15 295,

East, 272; Shortrede v. Cheek, (c) Monro v. Taylor, 8 Hare, 1 A. & E. 57. 56.

(h) Mumford v. Gelting, 7 C. (d) Bold v. Rayner, 1 M. & B. (N. S.) 305. W. 343 ; Sievewright v. Archi- (i) Horsey v. Graham, L. R. bald, 17 Q. B. 103; Rogers v. 5 C. P. 9. Hadley, 2 H. & C. 227; Kemp. (1) Macdonald v. Longbottom, son r. Boyle, 3 H. & C. 763; 34 1 E. & E. 977; affd. in Exch. L. J. Ex. 191.

Ch. ib. 987.

[blocks in formation]

the vendor of leasehold premises wrote a letter to his solicitor, stating, “I have closed with Mr. W. for this place,” it was held that parol evidence was admissible to show what “this place” was.(a)

So parol evidence has been held to be admissible to show that by the custom of the hop trade the following contract, “sold 18 pockets Kent hops at 100s.," a pocket containing more than a cwt., meant a sale at 1003. per cwt. (b)

Where an executory contract was entered into for the fabrication of goods, parol evidence of alterations and additions ordered by the purchaser in the course of manufacture was admitted, Gaslee, J., saying that “otherwise every building contract would be avoided by every addition."(c)

Where a written instrument contains no date, parol evidence is admissible to show when it was written, (d) or from what date it was intended to operate.(e)

When a contract is signed by an agent in his own name, parol evidence, upon an action brought to charge the principal, may be adduced to prove that the contract was signed by the agent on behalf of the principal. “Parol evidence," said Lord Denman, C.J., “is always necessary to show that the party sued is the person making the contract and bound by it. Whether he does

[blocks in formation]

(a) Waldron v. Jacob, 5 I. R. Eq. 131.

(6) Spicer v. Cooper, 1 Q. B. 424; and see as to commercial usages, Wigglesworth v. Dal. lison, 1 Sm. L. Cas. 546.

(c) Hoadly v. M‘Laine, 10 Bing. 482

(d) Edmunds v. Dounes, 2 C. & M. 459; Hartley v. Wharton, 11 A. & E. 934; 3 P. & D. 529; Lobb v. Stanley, 5 Q. B. 574.

(e) Davis r. Jones, 25 L. J. C. P. 91.

CHAP. V.

so in his own name, or in that of another, or in a feigned name, and whether the contract be signed by his own hand or by that of an agent, are inquiries not different in their nature from the question who is the person who has just ordered goods in a shop. If he is sued for the price, and his identity made out, the contract is not varied by appearing to have been made by him in a name not his own."(a) But it is not admissible on behalf of the agent for the purpose of showing that he merely acted as agent. (b) Where the defendant, a broker, signed a note as broker as follows: “ Sold this day for (plaintiff's broker) to our principals," etc., and the note did not disclose the name of the principal, parol evidence of a custom in the trade, that where a broker purchased without disclosing the name of his principal he was liable to be looked to as purchaser, was admitted, as the evidence did not contradict the written instrument, but only explained its terms.(c) An agent may, however, show by parol evidence that the contract by mistake described him as principal. (d)

Parol evidence is admissible to prove, when altera- to prove tions have been made in a document signed by one of the alterations in

memorandum.

assent to

(a) Trueman v. Loder, 11 A. & E. 589, 594 ; see also Lindus v. Bradwell, 5 C. B. 583; Ed. munds v. Bushell, L. R. 1 Q. B. 97.

(b) Higgins v. Senior, 8 M. & W. 834; Fawkes v. Lamb, 31 LJ.Q. B.98; Cropper v. Cook, L. R. 3 O. P. 194; Calder v. Dobell, L. R. 6 C. P. 486.

(c) Humfrey v. Dale, 7 E. & B. 266; affd, in Exch. Ch. E.

B. & E. 1004 ; Mollett v. Robin-
son, L. R. 5 C. P. 646; Fleet v.
Murton, L. R. 7 Q. B. 126 ;
Hutchinson v. Tatham, L. R. 8
C. P. 482.

(d) Wake v. Harrop, 6 H. &
N. 768; 1 H. & C. 202 ; 30 L. J.
Ex. 273; 31 L. J. Ex. 451; see
further notes to Thompson v.
Davenport, 2 Sm. & C. 7th ed.
377; Benj. on Sales, 2nd ed.
159.

T

« PreviousContinue »