Oral Evidence—when admissible.

25

defendant was not allowed to show a custom of trade upon such a contract to look to the broker for its completion. Trueman v. Loder, 11 Ad. & E. 589. But usage of trade is admissible to show that the broker is personally liable on a contract of sale on behalf of an undisclosed principal. Humfrey v. Dale, 7 E. & B. 266; 26 L. J., Q. B. 137 ; E. B. & E. 1004; 27 L. J., Q. B. 390, Ex. Ch. See also Cropper v. Cook, L. R., 3 C. P. 194, 199. The evidence of such usages may be confirmed by evidence of a similar custom in a similar trade in the same place, e.g., in the colonial market, to corroborate the usage in the fruit market. Fleet v. Murton, L. R., 7 Q. B. 126. So by evidence of a similar custom in the same trade at a neighbouring place; Plaice v. Allcock, 4 F. & F. 1074, cor. Willes, J. Where a charterparty was signed by the defendants, "as agents for merchants," evidence of a custom was admitted, to show that the defendants were liable on the charterparty as principals, if their principal's name was not disclosed within a reasonable time. Hutchinson v. Tatham, L. R., 8 C. P. 482. The distinction between these latter cases and Trueman v. Loder, supra, is founded on the rule that oral evidence may be given to establish the right or liability of an undisclosed principal, but not for the purpose of excluding from liability a person liable on the face of a written contract, for the effect of evidence admitted for this latter purpose would be to contradict the written document. But a custom that an agent's authority to underwrite policies is limited to a particular sum is good, though the insured is not aware of the limitation. Baines v. Ewing, L. R. 1 Ex. 320.

It has been doubted whether the practice of admitting oral evidence in these cases has not been carried to an inconvenient length. See Anderson v. Pitcher, 2 B. & P. 168. "How far a mercantile contract reduced to writing and signed by the parties, which is silent on a particular point, may have that silence supplied by evidence of a general course and usage of the trade to which it relates, is a question which it would be difficult to answer with exactness and precision." Per Tindal, C. J., in Whittaker v. Mason, 2 N. C. 369, 370; and per Cur. in Trueman v. Loder, supra, "The cases go no further than to permit the explanation of words used in a sense different from their ordinary meaning, or the addition of known terms not inconsistent with the written contract."

The usages of a market are binding on principals ordering goods to be bought on a market by their agents; Ireland v. Livingston, L. R., 2 Q. B. 99, 107 (affirm. L. R. 5 H. L. 395, on another ground); Bayliffe v. Butterworth, 1 Exch. 425; Maxted v. Paine, L. R. 6 Ex. 132, Ex. Ch.; Merry v. Nickalls, L. R., 7 H. L. 530. It is immaterial whether the principal knew of the usage or not, Grissell v. Bristowe, L. R., 4 C. P. 49 provided the custom regulate the mode of performing the contract only, and do not change its intrinsic character. Mollett v. Robinson, L. R. 7 H. L. 802, 836. A person employed to act as broker cannot, by the custom of the market, assume the character of principal, where his employer is ignorant of the custom. S. C. The customer of a bank is bound by the custom of bankers. Emanuel v. Robarts, 9 B. & S. 121. So are mercantile persons having dealings with bankers. Currie v. Misa, 1 Ap. Ca. 554, D. P.

Oral evidence, when admissible to control or explain agricultural contracts.] A custom affecting the contract may be proved by oral evidence in other, as well as in mercantile, contracts; as in the case of agricultural contracts. Thus, it may be proved that a heriot is due by custom on the death of a tenant, though not expressed in the lease. White v. Sayer, Palm. 211. Or, that a lessee by deed or writing is entitled by custom to an away-going crop, though it be not mentioned in the deed. Wigglesworth v. Dallison, 1 Doug. 201; Senior v. Armytage, Holt, N. P. 197. But where a covenant

excludes the customary right by an express provision on the subject-matter of the custom, evidence of such right is inadmissible. Webb v. Plummer, 2 B. & A. 746; Roberts v. Barker, 1 Cr. & M. 808; Clarke v. Roystone, 13 M. & W. 752. So where a brickfield was let at a yearly rent of 3s. per 1,000 bricks made, it was held that evidence of a custom that a lease of brickland on those terms should operate as a longer tenancy than a yearly one, was inadmissible. In re Stroud, 8 C. B. 502. Yet the custom may still prevail, though the terms of the holding are inconsistent with it, if it only relates to the period of quitting. Holding v. Pigott, 7 Bing. 475. And even where there is an express stipulation respecting the quitting, it may not always be sufficient to exclude the custom. Thus, where the custom was for the tenant to be paid for the last year's ploughing and sowing, and to leave the manure if the landlord would buy it; and the lease provided that the tenant should spend more manure than the custom required, leaving the rest to be paid for by the landlord at the end of the term: held that the tenant was still entitled to be paid for the last year's ploughing and sowing under the custom. Hutton v. Warren, 1 M. & W. 466. A custom to sell flints turned up in the ordinary course of good husbandry for the tenant's benefit is not inconsistent with a reservation of minerals to the landlord. Tucker v. Linger, 8 Ap. Ca. 508, D. P. On the lease of a rabbit warren, oral evidence was admitted to show that by the custom of the county, the word "thousand" means 1,200 when applied to rabbits. Smith v. Wilson, 3 B. & Ad. 728. A contract for the sale of cider may be explained, by local usage, to mean apple juice before it has been made into cider in its usual form. Studdy v. Sanders, 5 B. & C. 628. A sale of hops "at 100s.," may be explained to mean 51. per cut. Spicer v. Cooper, 1 Q. B. 424. A contract of hiring may be qualified by proof of customary holidays. R. v. Stoke upon-Trent, 5 Q. B. 303.

Oral evidence, when admissible to explain words having a statutory meaning.] Certain weights and measures have been fixed by the Weights and Measures Act, 1878 (41 & 42 Vict. c. 49), which by sect. 19 provides that a contract made by any other measures than those defined by the Act is void. The earlier acts under which Jones v. Giles, 11 Exch. 393, was decided did not contain this provision. The general rule is that where a statute has given a definite meaning to a word denoting quantity, evidence of custom is not admissible to show that it is used in a written contract in another sense. Smith v. Wilson, 3 B. & Ad. 728, 732, 733. See also Wing v. Earle, Cro. Eliz. 267; Noble v. Durell, 3 T. R. 271; Hockin v. Cooke, 4 T. R. 314; S. Cross, Master of, v. Ld. Howard de Walden, 6 T. R. 338.

A somewhat similar question arises upon the statute 24 Geo. 2, c. 23, which changes the style. In Furley d. Mayor, &c., of Canterbury v. Wood, 1 Esp. 198, Runnington on Eject., 2nd ed. 129, it was held by Ld. Kenyon that evidence was admissible to show that by the custom of the country the word "Michaelmas," in a notice to quit, meant " Old Michaelmas." It has been since assumed that this was a parol demise; but as the lands are stated to have been held by lease from a corporation, this was probably not So. In Doe d. Spicer v. Lea, 11 East, 312, however, it was held that evidence was rightly rejected when offered to show that "the feast of S. Michael," in a lease under seal, meant Old Michaelmas. A few days afterwards, M'Donald, C. B., held that a notice to quit at "Michaelmas" might be shown to mean 66 Old Michaelmas." Doe d. Hinde v. Vince, 2 Camp. 256: S. P. ruled by Ld. Ellenborough in Doe v. Brookes, at Hereford, same assizes, ut audivi. Id. 257, n. It does not appear whether the leases in these last two cases were by deed or parol. In Doe d. Hall v. Benson, 4 B. & A. 588, the distinction between leases under seal and those not so, was

Oral Evidence—when admissible.

27 taken by the court, and it was held that on a parol demise it might be shown that "Lady Day" meant "Old Lady Day." The cases of Doe d. Peters v. Hopkinson, 3 D. & Ry. 507; and Rogers v. Hull Dock Co., 34 L. J., Ch. 165, are to the same effect. In pleading, it was held that "Martinmas " must mean "New Martinmas," even though followed by the words, "to wit, the 23rd of November," which is the day on which Old Martinmas falls. Smith v. Walton, 8 Bing. 235. In many parts of the country the practice of letting lands, according to the old style, is still retained; and many text writers have expressed a general opinion that evidence of a custom of the country is always admissible to show that the feast day mentioned in the lease is referable to the old style, even though the lease be by deed. Vide tamen, 1 Smith's L. Cases, 8th ed., 619, 620.

Oral evidence, when admissible to explain ancient charters, grants, &c.] Long user may serve to explain an ambiguous act of parliament. Stewart v. Lawton, 1 Bing. 377. In the construction of ancient charters, expressed in obscure or general terms, oral evidence has always been admitted to prove the continual and immemorial usage under the instrument. 2 Inst. 282; R. v. Varlo, Cowp. 248; Chad v. Tilsed, 2 B. & B. 406. Thus, in a crown grant of "tithes," contemporaneous leases, proceedings in causes, and oral testimony, may be resorted to in order to show the species of tithes intended to be conveyed. Lucton School, Governors of, v. Scarlett, 2 Y. & J. 330. An ancient crown grant of a seigniory or lordship, or of " terra de Gower," may be shown by modern user to include the sea-shore between high and low water. Beaufort, Dk. of, v. Mayor of Swansea, 3 Exch. 413; see also Hastings, Corporation of, v. Ivall, L. R., 19 Eq. 558; although the grant from the crown contains no appropriate words. Calmady v. Rowe, 6 C. B. 861. Where a private deed of 1656 gave the nomination of a curate to "inhabitants," it was held that the word was properly explained by past usage to mean all housekeepers. Att.-Gen. v. Parker, 3 Atk. 576. So it was held that in an ancient charter, the word "inhabitants" might be explained by local usage. R. v. Mashiter, 6 Ad. & E. 153, and this decision was recognised in R. v. Davie, Id., 374, 386, where the same word, in a charter of Edward VI., was explained by usage to mean inhabitants paying church and poor-rates. So where an old charter granted and confirmed certain port-duties, it may be shown by user that the grantee is also entitled to other immemorial port duties not named in the charter. Bradley v. Newcastle, Pilots of, 2 E. & B. 427 ; 23 L. J., Q. B. 35, Ex. Ch.

There seems to be no distinction in this respect between charters and private deeds. Withnell v. Gartham, 6 T. R. 398. The words "three acres of meadow," in a surrender and admittance, may be confined by long user to the prima tonsura; Stammers v. Dixon, 7 East, 200; and pastura bosci may be explained by usage and later admittances to mean the soil and wood itself. Doe d. Kinglake v. Beviss, 7 C. B. 456. So evidence of usage is admissible to show what is comprehended in parcels described by words of a general nature or doubtful import. Waterpark, Ld. v. Fennell, 7 H. L. C. 650; Hastings, Corporation of, v. Ivall, supra. See also Forbes v. Watt, L. R., 2 H. L. Sc. 214.

But evidence of usage, however long, will not be admitted to overturn the clear words of a charter. R. v. Varlo, supra. And in the case of modern deeds evidence of the acts of the parties is not admissible to show their construction of it. Clifton v. Walmesley, 5 T. R. 565; Iggulden v. May, 9 Ves. 333; 2 N. R. 449, Ex. Ch. Even the conditions of sale, and the admissions of the grantee, are insufficient and inadmissible to narrow the operation of a deed of conveyance; Doe d. Norton v. Webster, 12 Ad. & E. 442; although we have seen that, in the absence of the deed, such admis

sions might be evidence of its contents. Ante, p. 2. Nor can the subsequent correspondence or conduct of the parties be submitted to a jury as evidence by which "alone" to explain the meaning of a contract. Simpson v. Margitson, 11 Q. B. 23; Doe d. Morgan v. Powell, 7 M. & Gr. 980.

Oral evidence admissible to discharge written agreements.] A deed cannot be revoked or discharged by parol, i.e. word of mouth, or writing not under seal; Rutland's (Countess of) Case, 5 Rep. 26 a; West v. Blakeway, 2 M. & Gr. 729, 751, et seq. But an executory agreement in writing not under seal (other than a bill of exchange or promissory note, vide infra) may, before breach, be discharged by a subsequent oral agreement. B. N. P. 152. After breach, it cannot be discharged except by release under seal, or accord and satis faction, Id.; Willoughby v. Backhouse, 2 B. & C. 824; or by proof of a valid agreement substituting a new cause of action in place of the old, for an invalid agreement will not discharge the former one. Case V. Barber, T. Raym. 450; Noble v. Ward, L. R., 1 Ex. 117 ; L. R., 2 Ex. 135, Ex. Ch. In these cases, wherever the subsequent oral agreement has had the effect, in point of law, of varying or discharging the original one, it is (apart from statute, as to which vide infra) admissible in evidence. Thus, in an action for not accepting goods, where it appeared that the agreement in writing was to deliver at a fixed time, the plaintiff may show a subsequent extension of the time by oral agreement. Cuff v. Penn, 1 M. & S. 21. Where an auctioneer sold for 61. an article described as silver in a printed catalogue, but which he publicly stated at the sale to be only plated; held, that this was an oral sale of a plated article. Eden v. Blake, 13 M. & W. 614. A distinction, however, is to be observed on this head between simple contracts in writing under the Stat. of Frauds, and contracts at common law. In the former case, an oral contract will not be admitted to show a subsequent variation in the written contract; as where several lots of land were bought together, it cannot be shown that the purchaser has, orally, waived the contract as to one lot to which the vendor could not make title; Goss v. Nugent, Ld., 5 B. & Ad. 58; or, that the parties varied the day of completion. Stowell v. Robinson, 3 N. C. 928; Marshall v. Lynn, 6 M. & W. 109; Stead v. Dawber, 10 Ad. & E. 57; Noble v. Ward, supra. See also Sanderson v. Graves, L. R., 10 Ex. 234. But it would have been otherwise if the contract had not been subject to the control of a statute; for where such a contract has been reduced into writing, it is competent to the parties, at any time before the breach of it, by a new contract not in writing, either altogether to waive, dissolve, or alter the former agreement, or to qualify the terms of it, and thus to make a new contract to be proved partly by the written agreement, and partly by the subsequent oral terms engrafted upon it. Goss v. Nugent, Ld., 5 B. & Ad. 65, per cur.

A contract within the Stat. of Frauds can, it seems, be wholly discharged orally. Goman v. Salisbury, 1 Vern. 240; Goss v. Nugent, Ld., 5 B. & Ad. 66, per cur. See, however, Harvey v. Grabham, 5 Ad. & E. 61, 74, per cur. But a contract in writing, good under the Stat. of Frauds, is not rescinded by a subsequent invalid oral contract intended to be substituted for the former one. Noble v. Ward, supra. By the Bills of Exchange Act, 1882, ss. 62, 89, the renunciation of the holder of a bill of exchange or promissory note of his rights against the acceptor must be in writing unless the bill or note is delivered up to the acceptor.

Oral evidence admissible to explain latent ambiguity.] Where an ambiguity, not apparent on the face of a written instrument, is raised by the introduction of oral evidence, the same description of evidence is admitted to explain it; for example, where a testator devises his estates of Blackacre, and has two

Oral Evidence-when admissible.

29

estates called Blackacre, evidence may be admitted to show which of the Blackacres was meant; or if one devises to his son John Thomas, and he has two sons of the name of John Thomas, evidence may be admitted to show which the testator intended. Per Gibbs, C. J., Doe v. Chichester, 4 Dow, 93; Doe d. Morgan v. Morgan, 1 Cr. & M. 235. And where the description of the devisee, or thing devised, is true in part, but not true in every particular, oral evidence is admissible to show the person or thing intended, provided there be enough on the face of the will to justify the application of the evidence; per Cur. in Miller v. Travers, 8 Bing. 248-9; Charter v. Charter, L. R., 2 P. & M. 315; L. R., 7 H. L. 364. Thus, an error in a Christian or surname may be proved. S. CC., and see Careless v. Careless, 1 Meriv. 384. Where the grantor has no lands agreeing exactly with the description in the deed, the lands intended may be shown by the contract of sale, or by letters written between the parties and their agents. Beaumont v. Field, 1 B. & A. 247. Where a farmer contracted in writing (as required by the Stat. of Frauds) to sell "his wool" at a certain price, evidence of a previous conversation between him and the buyer was held admissible to prove that his "wool" meant wool in his possession bought by him of other farmers as well as wool of his own growth, but not admissible to prove that only a limited quantity of such wool was intended to be bought. Macdonald v. Longbottom, 1 E. & E. 977; 28 L. J., Q. B. 293; 1 E. & E. 987; 29 L. J., Q. B. 256, Ex. Ch. See also Buxton v. Rust, L. R., 7 Ex. 280, 281, Ex. Ch., per Willes, J. So in construing a written contract of service under which A. was "to enter into the employ" of B., or A. was "to give the whole of his services to B.," oral evidence is admissible to show in what capacity A. was to serve B. Mumford v. Gething, 7 C. B., N. S. 305; L. J., 29 C. P. 105; Price v. Mouat, 11 C. B., N. S. 508; even although the Statute of Frauds requires a written contract. S. C. See also Chadwick v. Burnley, 12 W. R. 1077; T. T. 1864, Q. B. Where by a written agreement purporting to be between a company and the plaintiff, three of the directors of the company, who signed the same, agreed, in consideration of the advance of 500l. by the plaintiff to the company, to repay the same to the plaintiff, oral evidence was held admissible to prove that it was binding on the directors personally. McCollin v. Gilpin, 6 Q. B. D. 516, C. A.

Where a devise was to S. H., second son of T. H., but in fact S. H. was the third son, evidence of the state of the testator's family, and of other circumstances, was admitted to show whether he had mistaken the name or the description. Doe d. Le Chevalier v. Huthwaite, 3 B. & A. 632. There are also other authorities for admitting evidence that the testator was accustomed to misname a person, and thus to show who was meant by him, although there be a person in existence whose name corresponds with that in the will. Blundell v. Gladstone, 11 Sim. 467; 1 H. L. C. 778; Lee v. Pain, 4 Hare, 251. So by "my nephew, J. G.," testator's wife's nephew may be shown to be meant, though the testator also had a nephew J. G. Grant v. Grant, L. R., 2 P. & M. 8; Id. v. Id., L. R., 5 C. P. 380; Id. 727, Ex. Ch. ; Sherratt v. Mountford, post, p. 30. See Wells v. Wells, L. R., 18 Eq. 504, cor. M. R., contra. Where the devise was to John A., grandson of T. A., with a charge in favour of "each of the brothers and sisters" of the said John A., and it appeared that there were two grandsons of T. A., both named J. A.; held, that oral declarations of the testator were admissible to show which was meant, although it also appeared that only one of the grandsons had several brothers and sisters. Doe d. Allen v. Allen, 12 Ad. & E. 451. In the case of a devise to testator's niece, remainder to her three daughters, M., E., and A., the niece at the time of making the will had two legitimate daughters, M. and A., and one illegitimate, E.: held that the claim of the latter might be rebutted by showing that the niece formerly had a legitimate