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Oral Evidence-when admissible.


v. Groves, 15 C. B. 667 ; 24 L. J., C. P. 53. It is observable, however, that the four last cases were for non-performance of executory contracts within the Statute of Frauds, which ought to contain all the terms of agreement. So where the written agreement was to take goods on board a ship" forthwith,” oral evidence to show that they were to be received on board in two days was not allowed. Simpson v. Henderson, M. & M. 300. An absolute sale of a reversion was held not to be qualified by proof of an oral agreement to apportion the accruing rent. Flinn v. Callow, 1 M. & Gr. 589.

But in order to exclude oral proof of a contract, the writing must purport to be a complete contract. Therefore where a written order for goods was sent without mentioning a time of payment, and they were delivered with an invoice accordingly, it was ruled in an action for goods sold, that an oral agreement for six months' credit might be proved ; for the order per se was no contract, but only evidence of some of the terms of one. Lockett v. Nicklin, 2 Exch. 93. So where a written proposal was not accepted, oral evidence of the terms of the contract is admissible. Scones v. Dowles, 29 L. J., Ex. 122. See also Eden v. Blake, 13 M. & W. 614, post, p. 28. And it would seem that when a writing is not ex necessitate legis (as under the Statute of Frauds), the apparent deficiencies of a written agreement as to some particulars of price, time of delivery, &c., may be supplied by oral evidence, although the jury would be directed to presume a reasonable price, or reasonable time, &c., in the absence of such evidence ; for such evidence does not contradict or vary the written document as far as it goes; and it may be that the parties themselves did not intend to commit to paper the whole of the contract. See Valpy v. Gibson, 4 C. B. 837. Where the Statute of Frauds applies, oral evidence to supply the intention of the parties would not be admissible, as we have seen above. See further the title Action for not accepting Goods, post.

If a party sign an agreement in his own name he cannot afterwards defeat an action on it by proving that he signed only as agent for another. Magee v. Atkinson, 2 M. & W. 440 ; Jones v. Littledale, 6 Ad. & E. 486 ; Higgins v. Senior, 8 M. & W. 834. Where A. signed a charter-party as shipowner, and was so designated in it, A.'s principal could not sue on it, and prove that he was owner, and not A. Humble v. Hunter, 12 Q. B. 310. But if a sold note be in the form “sold to our principals," oral evidence is admissible to show who those principals are. Cropper v. Cook, L. R., 3 C. P. 194. Where an instrument professed to be made between plaintiff and A., and signed by B. as agent for A., it was held that B. was not liable on the contract, if it turned out that he had no authority to bind A. Jenkins v. Hutchinson, 13 Q. B. 744. In an action on a written contract between plaintiff and B., oral evidence is admissible, in behalf of the plaintiff, to show that the contract was in fact, though not in form, made by B. as agent of the defendant; for the evidence tends not to discharge B., but to charge the dormant principal ; Wilson v. Hart, 7 Taunt. 295; and it is admissible although B. named his principal at the time he entered into the contract; Calder v. Dobell, L. R., 6 C. P. 486, Ex. Ch. Where a deed between A. and Y., which contained a clause, “it is further understood between the parties that ś. guarantees payment to Y. of all moneys due to them under this contract," was executed by S. on behalf of A. under a power of attorney, thus “P. P. A.-A.-S.," oral evidence was held admissible to show that S. signed on behalf of himself as well as for A., as this was doubtful on the face of the agreement. Young v. Schuler, 11 Q. B. D. 651, C. A. And see further 2 Smith's L. Cases, Thompson' v. Davenport, in notis ; and Variance, post, pp. 87, 88.

Where a mortgage deed provided for the payment of the mortgage debt by instalments, and gave a power of sale if the mortgagor should make


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default in payment of the instalments, it was held that oral evidence was admissible to show that no default had been made, although the instalments had not been paid according to the deed. Albert v. Grosvenor Investment Co., L. R., 3 Q. B. 123. This decision was, however, disapproved in Williams v. Stern, 5 Q. B. D. 409, C. A.

A patent ambiguity is to be explained by the judge, and not left to the jury. Thus, whether a “month means a lunar or calendar month, is a question for the judge ; but extrinsic evidence is admissible that a word is used in a sense peculiar to some trade, business, place, or local usage, in which case it is for the jury to find the meaning. Simpson v. Margitson, 11 Q. B. 23 ; Smith v. Thompson, 8 C. B. 44. See Hills v. London Gas Co., 27 L. J., Ex. 60, where it seems to have been considered that the judge must construe the contract though its terms be technical or scientific, and that expert evidence on the point would be for the information of the judge, and not of the jury. In that case a patent for the use of hydrate of iron was contested, by showing that the use of carbonate of iron was not new, and that, in commerce, the scientific distinction between those two substances was not preserved, and Pollock, C.B., thereupon directed a nonsuit. But if their commercial identity had been disputed at the trial, there would have been a question for the jury, and on this ground, ut semble, a new trial was granted

There are cases in which an oral agreement may exist between the parties to a written agreement on a matter collateral and superadded to it, so that both may well subsist together. In such cases oral evidence of the collateral matter is admissible ; for the original contract is unaffected by it. Thus, where the parties to an indenture of charterparty afterwards agreed orally for the use of a ship at a period before the charterparty attached, oral evidence of this was held admissible in an action on this latter agreement.

Parkin, 12 East, 578. Where there was an oral agreement by the landlord to pay £20 towards repairs in consideration that plaintiff would become tenant, and plaintiff accepted a lease and did the repairs, which defendant, the landlord, then promised to repay; held, that plaintiff could recover on an account stated, although the lease itself contained no such agreement. Seago v. Deane, 4 Bing. 459. So where a tenant executed a lease, which reserved the right of shooting to the lessor, on an oral promise by the latter that he would keep down the game; held, that the tenant could sue the lessor for breach of this promise. Morgan v. Griffith, L. R., 6 Ex. 70; Erskine v. Adeane, L. R., 8 Ch. 756. The decision in Mann v. Nunn, 43 L. J., C. P. 241, is to the like effect; it was, however, doubted by Blackburn, J., in Angell v. Duke, 32 L. T., N. S. 320, E. T. 1875, Q. B. On the sale of land by auction, evidence was admitted of an oral statement by the auctioneer that there was a certain right of way to the land. Brett v. Clowser, 5 C. P. D. 376. Where A. orally agreed with a railway company that they should carry his cattle to K. station, and at the same time signed, without noticing its contents, a consignment note for the carriage of the cattle to an intermediate station, E. ; it was held, that the oral agreement was admissible in evidence as not contradicting, but being supplemental to the written contract. Malpas v. L. & S. W. Ry. Co., L. R., 1 C. P. 336. Where the plaintiff agreed in writing to purchase certain furniture of the defendant, and by that agreement the defendant was authorized to settle an action of C. v. L., it was held that, in an action for not settling the action of C. v. L., evidence was admissible of a distinct oral agreement to settle that action, made immediately before the written agreement. Lindley v. Lacey, 17 C. B., N. S. 578; 34 L. J., C. P. 7. These cases are plainly not exceptions to the general rule.

Nor is it an exception to this general rule that it does not extend to the

White v.

Oral Evidencewhen admissible.

19 exclusion of all the legal incidents which by the general law merchant, or common law, attach to certain instruments. Thus, the days of grace allowed to the parties to bills; the necessity of notice of dishonour, &c., are not specified on the bill ; so of implied warranties on policies, &c. In such cases no evidence is admissible; for the court will take notice of all legal incidents. It is otherwise in regard to particular usages or local customs, which will be mentioned hereafter; vide post, p. 21, et seq.

Oral evidence, when admissible to prove a consideration, or to vary the date, or description, dc.] The cases as to proof of consideration stand somewhat apart, and it would be dangerous to draw any inference from them with respect to the general law upon the subject under discussion. It is constantly the practice to show that no consideration has been given for a bill or note, although the instrument bear on its face the words "value received," which clearly import a consideration for the promise contained in the instrument. Upon a contract under seal it is not, as in a contract not under seal, generally necessary to prove that there was any consideration, or the nature of it. But if the consideration comes in question at all, it seems generally to have been permitted to inquire into it, notwithstanding any averment in the deed. Thus where the considerations mentioned in a deed were 10,0001., and natural love and affection, an issue was directed to inquire whether natural love and affection formed any part of the consideration. Filmer v. Gott, 4 Bro. P. C. 230. So a deed operating under the Statute of Uses, and reciting no consideration, may be supported by showing that a pecuniary one in fact passed. Mildmay's case, 1 Rep. 176. So a deed which recites only a pecuniary consideration may be shown to have been also founded on the consideration of marriage. Id.; Villers v. Beamont, Dyer, 146 a ; Tull v. Parlett, M. & M. 472; and Clifford v. Turrill, 1 Y. & C. C. C. 138; 14 L. J., Ch. 390 ; S. C., on appeal, Id. 396. So evidence is admissible to show that the consideration stated in a bill of sale is not the true consideration, and that it is, therefore, as against trustees in bankruptcy and execution creditors, void under the Bills of Sale Act, 1878, s. 8. Ex pte. Carter, 12 Ch. D. 908. The same principle applies to the Bills of Sale Act, 1882 ; see sect. 9, and schedule. A guarantee purported to be “in consideration of your having advanced this day," &c.; oral evidence was admitted to show that the advance was contemporaneous with the guarantee, and was therefore a good consideration. Goldshede v. Swan, 1 Exch. 154. See also the following cases in which words of guarantee, founded on a consideration ambiguouslyexpressed, so as to import either a past or future credit, were explained by extrinsic evidence that the credit was in fact a future or continuing credit ; or that the consideration and guarantee were simultaneous. Edwards v. Jevons, 8 C.B. 436; Colbourn v. Dawson, 10 C. B. 765 ; 20 L. J., C. P. 154; Bainbridge v. Wade, 16 Q. B. 89 ; 20 L. J., Q. B. 7; Heffield v. Meadows, L. R., 4 Č. P. 595 ; Laurie v. Scholefield, Id., 622. See Morrell v. Cowan, 7 Ch. D. 151.

A deed takes effect from the delivery, and not from the date; therefore oral evidence was allowed to show that a lease dated on Lady Day, 1783, and purporting to commence on Lady Day last past, was in fact executed after the date, and that the term therefore commenced on Lady Day, 1783, and not 1782. Steele v. Mart, 4 B. & C. 272. In such case there is no real contradiction. The same consideration will also explain the ground on which oral proof was permitted to be given by the defendant that the plaintiff had made certain admissions on his examination before commissioners of bankruptcy, although the written examination produced contained no such admissions. Rowland v. Ashby, Ry. & M. 231. So, although the written examination, taken by a magistrate on a criminal charge, is the best evidence of such examination, yet any additional statements made by the examined, and not reduced to writing, may be proved by oral evidence. Venafra v. Johnson, 1 M. & Rob. 316.

Although no oral evidence can be used to add to or detract from the description in a deed, or to alter it in any respect, yet such evidence is always admissible to show the condition of every part of the property, and all other circumstances necessary to place the court when it construes an instrument in the position of the parties to it, so as to enable it to judge of the meaning of the instrument. Baird v Fortune, 4 Macq. 127, 149, per Ld. Wensleydale ; Accord. Magee v. Lavell, L. R., 9 C. P. 107, 112. See also Inglis v. Buttery, 3 Ap. Ca. 552, D. P. The same rule applies in the case of a will, vide, post, p. 30; and see Way v. Hearn, 13 C. B., N. S. 292; 32 L. J., C. P. 34; Newell v. Radford, L. R., 3 C, P., 52; and Lewis v. Gt. W. Ry. Co., 3 Q. B. D. 195, C. A. See, however, Stanton v. Richardson, L. R. 7 C. P. 428, 434, per Brett, J.

Mere words of description in a deed of conveyance, not operating by way of estoppel, may be contradicted by oral evidence ; thus the lessee of land, described as “meadow," may prove it to have been arable in an action by the lessor for ploughing it up; Skipwith v. Green, 1 Stra. 610; or he may show that land described as containing 500 acres does not in fact contain so many ; S. C. as reported Bac. Ab. Pleas I. 11; or contains many more ; Jack v. MʻIntyre, 12 Cl. & Fin. 151 ; Manning v. Fitzgerald, 29 L. J., Ex. 24.

In a settlement case, where the deed of conveyance stated the consideration of the purchase to be 28l., oral evidence was admitted to show that the consideration was in fact 301. R. v. Scammonden, 3 T. R. 474; and that money, stated in a deed of apprenticeship to have been paid by J. M., was in fact parish money. R. v. Llangunnor, 2 B. & Ad. 616. In these cases, however, the oral proof was admissible, not on the ground of its consistency with the writing, but because the recital in the deed was res inter alios, which the parishes were not estopped from correcting even by testimony inconsistent with the writing. So a parish may show a settlement by renting a tenement in parish B., though the lease describes it as in parish A. R. v. Wickham, 2 Ad. & E. 517.

Oral evidence admissible to prove fraud, illegality, or error.). Where fraud is imputed, any consideration or fact, however contrary to the averment of a deed, may be proved to show the fraudulent nature of the transaction ; B. N. P. 173 ; Paxton v. Popham, 9 East, 421 ; for fraud is a matter extrinsic and collateral, which vitiates all transactions, even the most solemn. Thus, in order to set aside a will, oral evidence may be given of what passed at the signing, and what the testator said, to show that his signature was obtained by fraud. Doe d. Small v. Allen, 8 T. R. 147. And, in general, matter which in law avoids an instrument, whether it be fraud, forgery, duress, illegality, &c., may be proved orally, however contradictory to its tenor, provided the pleadings be adapted to such evidence. See® Doe d. Chandler v. Ford, 3 Ad. & E. 649 ; and i Smith's L. Cases, Collins v. Blantern, in notis.

Evidence is sometimes admissible to show a mistake in a writing; thus a contract, usurious on the face of it, might have been explained by showing it was made so by a clerical error. Anon., Freem. 253 ; Booth v. Cooke, Id. 264. So a house, misdescribed in a lease as No. 38, may be shown to be in truth No. 35. Hutchins v. Scott, 2 M. & W. 816, per Curiam. See also Hutchin v. Groom, 5 C. B. 515. But where a verdict and judgment were given in evidence to prove a public way, the court will not admit proof that the verdict was entered erroneously by the mistake of the officer. Reed v. Jack-son, 1 East, 355. The record in the first action should have been amended 21

Oral Evidencewhen admissible. by leave of the court. But where a Nisi Prius record was put in evidence to prove damages in a suit against the plaintiff, and the postea did not show on which of two different counts the damages were in fact given, oral evidence was admitted to prove that they were recovered, substantially, on one of the counts only, this being no contradiction of the record, the verdict and damages having been entered generally. Preston v. Peeke, E. B. & E. 336 ; 27 L. J., Q. B. 424. Proof of a material and substantial error in the frame of a subsisting contract cannot in general be set up in an action upon it ; Perez v. Oleaga, 11 Exch. 506 ; 25 L. J., Ex. 65 ; Solvency Mutual Guarantee Co. v. Freeman, 7 H. & N. 17; 31 L. J., Ex. 197 ; except by way of a claim for rectification under the J. Act, 1873, s. 24 (1-3), on the ground of common mistake. But there is no occasion to reform the contract where an agent is wrongly described as principal; Wake v. Harrop, 6 H. & N. 768 ; 30 L. J., Ex. 273; 1 H. & C. 202 ; 31 L. J., Ex. 451, Ex. Ch.; or where it has been completely executed according to the intention of the parties ; Steele v. Haddock, 10 Exch. 643 ; 24 L. J., Ex. 78; Luce v. Izod, 1 H. & N. 245 ; 25 L. J., Ex. 307; Vorley v. Barrett, 1 C. B., N. S. 225 ; 26 L. J., C. P. 1 ; or where the full performance has become impracticable by reason of the default of the plaintiff. Borrowman v. Rossel, 16 C. B., N. S. 58; 33 L. J., C. P.111. And in such cases the mistake will afford a defence without rectification. As to when rectification will be ordered, see Story, Eq. Jur. $$ 152, et seq.

Oral evidence, when admissible to explain mercantile contracts and words of art.] Where the parties have contracted in writing, in many instances oral evidence is admitted to prove an usage affecting the contract, on the ground that, where such usage exists, the parties must be taken to have made their contract subject to its operation. And such evidence is sometimes admitted as explanatory of the language of the writing, and sometimes as superadding a tacitly implied incident. Thus, oral evidence is always admitted to show the sense in which, according to the custom of merchants, a mercantile contract is to be understood. See 1 Smith's L. Cases, Wigglesworth v. Dallison, in notis. In such a case it is unobjectionable to ask a witness whether there is any generally understood meaning of certain words among persons engaged in the particular trade or commerce under investigation. Robertson v. Jackson, 2 C. B. 412. And such a question must be put to the witness before he is asked what he understands by the written contract to which it is meant to apply the usage. Curtis v. Peek, 13 W. R., 230 M. T. 1861, Ex. Ch.

Where a ship was warranted to depart with convoy, evidence of usage was admitted to show that this meant convoy from the usual place of rendezvous. Lethulier's case, 2 Salk. 443. So, to explain the meaning of "days ” in a bill of lading; Cochran v. Retberg, 3 Esp. 121 ; to show that the Gulf of Finland is considered by mariners to be within the Baltic; Uhde v. Walters, 3 Camp. 16; or the Mauritius to be an East Indian Ísland. Robertson v. Money, Ry. & M. 75. So evidence was admitted to explain the term “privilege” in a contract between shipowner and captain ; Birch v. Depeyster, 4 Camp. 385 ; and to show the received meaning of “mess pork of S. & Co." Powell v. Horton, 2 N. C. 668. Where the captain of a ship agreed to convey a boat of certain dimensions for the plaintiff, evidence was admitted on behalf of the captain that the practice was to remove the deck of such boats when put on board. Haynes v. Holliday, 7 Bing. 587. Apparent variance in bought and sold notes may be reconciled by the evidence of brokers. Bold v. Rayner, 1 M. & W.343 ; Kempson v. Boyle, 3 H. & C. 763 ; 34 L. J., Ex. 191, quoted post, Action for not accepting Goods. Where it was represented to an insurer that the ship would sail from St. Domingo in October, he was permitted to show in his defence that this was

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