means evidence outside of the agreement, includes both oral and written offers of evidence;12 but it is inadmissible.13 Thus A and B have made a written contract for the sale of a horse for $100. Later, B insists that A stated he was to receive a whip as part of the bargain. Nothing was said of a whip in the written contract. Proof as to any conversation as to the whip is parol to the written agreement of the parties. This writing is held to be the final word as to what their bargain was; otherwise, there would be no value in writing a contract. Even if B could show a letter in which A promised the whip, this would not be admissible to vary the terms of the written contract, for this written evidence would also be parol. The parol evidence rule protects the stability of contracts. If evidence were admissible in every case to add to or take from the terms of an agreement, which the court finds to be complete, every contract would be at the mercy of unscrupulous witnesses and perjured testimony. The parol evidence rule is subject to exceptions, which permit the admission of certain extrinsic evidence. This admissible evidence may be classified into three heads:14 (1) evidence as to the fact that there is a document purporting to be a contract, or part of a contract; (2) evidence that the professed contract is in truth what it professes to be; (3) evi 12 It may be conversations, or writings other than the written contract. 13 Strictly parol does not mean oral, although frequently used in that sense, as parol contract. It may mean oral or written in the sense of extrinsic to and not a part of the writing in question. 14 Anson, Contracts (Huffcut's 2d ed.), § 332. dence as to the terms of the contract. These heads include the proof of the existence of a document; the evidence of the fact of an agreement, for some necessary element may be lacking or an agreement may be subject to an outside condition; and the proof of the terms, which may require extrinsic evidence to explain an ambiguity in the document or to include a usage.15 Sealed contracts. Before discussing the rules as to such exceptions, a distinction must be noted between written simple contracts and contracts under seal.16 A contract under seal derives its validity from the form in which it finds expression. Therefore, if the instrument is proved to have an existence, the contract is also proved, unless there is evidence of circumstances, as fraud, preventing the legal formation of the contract, or the presence of an escrow condition. On the other hand, a written simple contract is merely evidence of the contract; it is not the contract itself. 148. Same subject-Proof of the document.—A contract under seal must, like any contract, be proved to have an existence. This is accomplished by evidence of the sealing and delivery of the instrument. At common law, if there is an attestation, it is necessary to call one of the attesting witnesses.17 Statutes have greatly modified this rule by providing that the subscribing witness need not be called unless such a witness has been required by some law to attest 15 Hall v. Davis, 36 N. H. 569, LEADING ILLUSTRATIVE CASES. 16 Anson, Contracts (Huffcut's 2d ed.), § 333. 17 Story v. Lovett, 1 E. D. Smith 153 (N. Y. C. P.), LEADING ILLUSTRATIVE CASES. in order to make the instrument valid.18 If the attesting witness were dead, or incapable, or out of the jurisdictional limits of the court, the proof might be made by proof of his handwriting.19 In proving a simple contract (whether oral or written) evidence, although parol, is always admissible to show that the party sued is the party who made the contract. If a contract is only partly in writing, evidence is admissible to supplement the writing in order to prove the existence of a contract. Thus, where A writes to B that he will pay a certain sum for a carload of potatoes, and to ship them, if B accepts the offer, the evidence of A's offer would be the written evidence of the letter, and the evidence of B's acceptance would be oral evidence as to the shipment. Similarly, if a contract consists of several documents, oral evidence is admissible to show their connection. But where the contract is within the terms of the Statute of Frauds, one of the documents must contain a reference to the other before extrinsic evidence is admissible to explain the reference.20 The loss of an instrument may be proved under the general rules of evidence.21 149. Same subject—Fact of agreement.-Parol or extrinsic evidence is always admissible to show that the document is not in fact a valid agreement. For instance, if one of the parties is an infant, who is incapacitated from contracting, that fact may be 18 Anson, Contracts (Huffcut's 2d ed.), § 335, note; Wigmore, Evidence, § 1290, note 4; see Sanborn v. Cole, 63 Vt. 590. 19 Richards v. Skiff, 8 Ohio St. 586. 20 Anson, Contracts (Huffcut's 2d ed.), p. 323 21 See subject, EVIDENCE. proved by parol evidence. Similarly, the want of genuine consent because of mistake or fraud may be shown. If the contract is simple, the want of consideration may be proved.22 That is, evidence is admissible not to vary a written contract, but to show that there never had been a contract at all, for the writing does not conclusively establish the existence of the contract.23 It may also be shown that there is a parol condition which suspends the operation of a contract, as an escrow. 150. Same subject-Terms of the contract.-It is the general rule that the written document or record of a contract may not be varied by parol evidence. The written statement is said to form the best evidence of the intention of the parties. There are certain modifications of this rule:24 (1) proof of terms supplemental or collateral is admissible to complete a contract, although the remainder of the contract is in writing; (2) an explanation of terms is admissible in evidence; (3) evidence of a special usage may be admissible; (4) parol evidence is admissible in applying equitable remedies in a case of mistake. Supplementary and collateral terms. Where all the terms have not been put in the document, parol evidence of the supplemental terms is admissible to complete the contract.25 Such evidence may not vary but may only complete the terms of the contract. Thus, where a written contract for the sale of goods mentions the price, but is silent as to the terms of 22 Reynolds v. Robinson, 110 N. Y. 654, LEADING ILLUSTRATIVE CASES. 23 Burnes v. Scott, 117 U. S. 582; Leddy v. Barney, 139 Mass. 394. 24 Anson, Contracts (Huffcut's 2d ed.), § 339. 25 Lyon v. Lenon, 106 Ind. 567. payment, the terms may be shown by parol evidence.26 Furthermore, a subsequent agreement changing the terms of the original contract may be shown by parol evidence.27 Explanation of terms. The explanation of the terms of a written contract may be necessary, for instance, to identify the parties. Two persons may have the same name, or one of the contracting parties may be an agent.28 Similarly, a description of the subject matter may need explanation. Where, for instance, A agreed to buy from B certain wool, described as "yarn wool," evidence of the quality and quantity of the wool was admissible.20 Again, it may be necessary to explain some word or clause in the writing, which does not describe the subject matter of the contract, but which describes the amount and character of the responsibility undertaken by a party. Where a vessel is warranted "seaworthy," parol evidence is admissible to show what the parties intended by this phrase.30 In the explanation of terms, two kinds of ambiguities arise. One is termed a patent ambiguity, which is apparent on the face of the instrument; the other is called a latent ambiguity, where the ambiguity is not discovered until an attempt is made to perform the terms of the contract. Examples of patent ambiguities are cases where words are omitted, or are 26 Jarvis v. Berridge, 8 Ch. App. 351 (Eng.); Horner v. Horner, 145 Pa. 258. 27 Worrell v. Forsyth, 141 Ill. 22. 28 Anson, Contracts (Huffcut's 2d ed.), § 341. 29 Macdonald v. Longbottom, 1 El. & El. 977 (Eng.). 30 Burgess v. Wickham, 3 B. & S. 669 (Eng.). |