\:, Cornell University Law Library FROM THE BENNO LOEWY LIBRARY RECEIVED BY CORNELL UNIVERSITY UNDER THE WILL OF ' MR. BENNO LOEWY Cornell University Library KF 8948.B88 A treatise on the admissibility of parol 3 1924 020 133 199 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924020133199 A TREATISE ON THE ADMISSIBILITY OF PAROL EVIDENCE IN RESPECT TO WRITTEN INSTRUMENTS By IRVING 5R0WNE Editor of the Albany Law Jourhai. and thb American Beforts NEW YORK L. K. STROUSE AND COMPANY 63 Nassau Street 1893 COPTEIGHT, 1893, By IRVING BROWNE. m!Vr> PREFACE. The purpose to prepare this trfeatise was formed more than twenty years ago, and some parts of it were written many years ago. The idea of writing such a work grew out of the costly suffering of one of the author's clients by reason of judicial ignor- ance of an exceedingly elementary doctrine of this branch of law, and the work has grown up gradually from subsequent practical experience and from the editorial reading and research of the last fourteen years. It is not a little singular that in rfiaflood of modern text-books none have been written Ji)&n\tm^ fOpM, in*regard to which ques- tions arise in every lawyer's every-day practice. Until now no attempt at a distinct, comprehensive and thorough treatment of the subject has ever been made. To ascertain the law the prac- titioner has been obliged to search a great variety of books. The text-books examined in the preparation of these pages would form a respectable working library. Even in the digests there has been no thorough grouping of the decisions under one head. The writers on evidence have done no more than devote a few paragraphs to the topic, the most extensive treatment by any of this class of authors being that of Mr. Frank S. Rice, in his recent work, in which are to be found some seventy-five consecutive but coarsely-printed pages on the topic, considerably taken up with the titles of cases, and much in the nature of a digest. Decidedly the best treatment it has ever received is at the hands of Mr. Dwight Arven Jones, in his most excellent work on " The Con- struction of Commercial and Trade Contracts," in which the author devotes two hundred pages to the subject, but the treat- ment is necessarily limited to its applicability to the special branch of commercial agreements. A glance at the table of cases in the present volume will reveal the largeness of the general subject, and every lawyer's experience will cause him to wonder, if he chances to think about it, why it has never before formed the basis of a distinct commentary. IV P^REFACE. It has been the author's chief purpose to furnish a practical book for busy practitioners, in which, without tedious searching, they can find the law stated clearly and succinctly, accompanied by suitable illustrations from the reports, pro and con, with suf- ficient quotations from the judicial opinions, and with a few lead- ing cases on disputed points set forth in such fullness as to dispense with the necessity of resort to the original reports, frequently inaccessible, and to enable the commentary to stand upon its own footing. A secondary purpose has been to furnish a text-book fit for scholars and teachers. In a word, the work may be defined as an attempt at a code of parol evidence, accompanied by abundant illustrations. The author has uniformly stated the law as he conceives it to be declared by the volume (if not the weight ) of authority, but where his own opinion differs therefrom he has ventured to express it. In every case of conflict, he has endeavored thus to set forth the rule of the courts, without any attempt to fortify his own opinion by partial or uncandid representation of the authorities. The author believes that he has personally examined every case cited; and while he has generally been content with stating the substance in his own language, yet in a few instances of lead- ing importance and strenuous dispute he has given the opinions substantially in full, and has very frequently quoted liberally from the language of the judges in other instances. Quotations have uniformly been indicated by the proper sign, so that the reader will have no difficulty in distinguishing the statements and views of the writer from the judgments of the courts^the author from the authorities. The author is not " conscious of errors and omissions " — as the prefatory phrase in that case made and provided frequently runs — for if he were he would certainly correct them. But errors and omissions must needs come, and the author will be, not glad, but still thankful, to have them pointed out. It is said that one must build one or two houses before he can frame one exactly to suit himself, to say nothing of other people ; and this may be true of the writing of law books. One thing seems certain — that a con- scientious author can never at first get his work exactly to satisfy his own ideal, although he may not be able to tell where the faults lie, just as a man with a toothache may not be able to point out the exact seat of the pain. In the perusal of the following pages the scholar will be glad PREFACE. V to observe that in recent years there has been a general tendency to relax the old dogmas of parol evidence, and to convert the law into a more convenient and rational instrument of justice. Especially is this true of incomplete agreements, of customs, and of wills, in respect to which the law has made sensible advances in the last half century. It is also noteworthy that the ancient distinction between patent ambiguities and latent ambiguities, founded on a scholastic refinement by Lord Bacon, and echoed parrot-like and senselessly followed by generations of modern judges, has been effectually done away. The general subject of Evidence has grown much too large for proper handling as a whole, and in the future can be adequately treated only in separate treatises on distinct subdivisions. An excellent type of the ideal treatment may be found in Mr. Law- son's work on "Presumptive Evidence." If the reception of the present work is such as to convince the author that he has any call to such an office, he may feel encouraged to follow this up ■with some similar treatise on some other subordinate branch of evidence. The author acknowledges his indebtedness to several friends in the printing of this volume: to the Honorable David Dudley Field for suggestions and criticisms; to Mr. John T. Cook, of Albany, N. Y., a very competent and experienced editor, for direc- tion to additional authorities; and especially to Mr. Adelbert Moot, of Buffalo, N. Y., a highly approved practitioner and an acknowledged expert on the subject of evidence, for his assistance in the reading of the proofs, and for exceedingly valuable sug- gestions both of a thepretical and a practical character. Irving Browne. Buffalo, N. Y. Synopsis of Contents. CHAPTER I. — Introductory, 1-12. General rule excluding parol evidence, i, 2. Reasons for exceptions to the rule, 2, 3. Scope of this work, 3. Codifications of the subject, 3-g. Stephen's rules, 3-6. New York proposed Code of Evidence, rules of, 6-8. Abbott, Austin, his rules. 9, 10. Chamberlayne, Charles, his rules, 10, 11. Bacon's Abridgement, rules in, II, 12. CHAPTER II.— Primary Rules, 13-20. Existence of writing. — Parol evidence is competent jo show the existence of a writing, and that it was intended as an agreement, 13. Writings which are not agreements. — The exclusion of parol evidence applies strictly to matters of agreement, and not to writings which are not of the character of agreements, 14. Lost Instrument. — Parol evidence is admissible to prove the contents of an instrument that has been lost or destroyed, or is not produced upon notice, 14. Ownership of personal property. — Parol evidence is competent to establish ownership of personal property, although the owner acquired title by virtue of a written instrument still existing, 15. Obscurities and peculiarities. — An obscurity in the handwriting, whether from age, accident or the character of the hand itself, may be solved by a resort to parol and opinion evidence, and the same is true of peculiar characters and abbreviations, 1 5 . Illustrations, 15, 16. Technical expressions. — Parol evidence is admissible to explain the meaning of words and phrases not in common use, such as foreign, obsolete, scientific, abbreviated, or technical expressions, 16. Alterations. — Parol evidence is competent to explain or show alterations, 16. Date and delivery. — The true date of any instrument may be shown by parol, without regard to the date recited, and the date of delivery may be shown although differ- ent from the date of the instrument, 17. Irregular instruments not necessarily in writing. — Where a contract is one not re- quired by the law to be in writing, and is inadmissible in evidence for lack of some statutory requirement, parol evidence of the contract may be given, 17. Illustrations, 17. Contrary doctrine, 17, 18. Collateral instruments. — When the contents of a paper are not involved in the issue, its execution may be proved as an independent fact, without production of the instrument, 18. Collateral instrument-^form. — When papers or documents are introduced collaterally on the trial of a cause, the purpose and object for which, and the reason why they were made in the particular form, may be explained by parol, 18. Rebuttal of equity or presumption. — Parol evidence is admissible to " rebut an equity," or a presumption, 18. Illustrations, 18, 19. Public office. — The fact that a person holds and exercises a public office may be shown by parol, without producing his commission or written authority, 19. via SYNOPSIS OF CONTENTS. Legal relations. — A legal relation between parties may be shown by third parties by parol, although the relation is established by a writing. 19. Descriptions of personalty. — Vague descriptions of personal property may be made certain by parol, 19. Description partly incorrect. — Where part of a description is false or incorrect, it may be rejected, if enough is left to identify the subject of the description, 19. Loss of rights.— 1\x. loss of certain rights acqvfired under = writing may be shown by parol, 20. Illustration, 20. Other 'writings. — Other writings between the parties relative to the same subject mat. ter are admissible to explain or qualify the agreement before the court, 20. CHAPTER III.— Parties, 21-30. Identifcation.— ?iro\ evidence is admissible to identify the parties to a contract, 21. Illustrations, 21, 22. Agency — unsealed contract— undisclosed principal. — In order to hold an undisclosed principal, extraneous evidence is admissible to show that the signer of an unsealed contract acted only as agent, although the contract does not name the real princi- pal, and purports to have been made by the agent for himself. This evidence may be of an authorization by a principal ; or where there was no original author- ity for the execution of the contract by the professing agent, parol evidence is competent to show that with knowledge of all the facts he expressly or silently acquiesced, or accepted the benefits, 22. Illustrations, 23. Contrary authority, 23. As to notes, 24. But evidence that a contract, in the name of a principal and signed apparently as agent, was intended as the contract of the signer alone, is inadmissible, 24. Illustrations, 24, 25. Agency — sealed instrument. — A contract under seal made by an agent will not bind the principal unless made in the name of the principal, and extrinsic evidence is inadmissible to show the principal, 25. Illustrations, 26-28. Agency — apparent principal. — A contract binds the signer when he subscribes appar- ently as principal, and he may not introduce parol proof of his agency to evade his liability, 28. Illustrations, 28-30. CHAPTER IV.— Strangers, 31-42. Exclusion hinds only parties and primes. — The rule excluding extrinsic evidence in the construction of written instruments is applicable only to controversies between the parties to the instrument and their privies, and does not apply to controversies between third persons, or between one of the parties and a third person, 31. Illustrations, 31-40. Writing still best evidence. — But even in respect to strangers to the instrument, the writing itself is the best evidence, and must if possible be produced, and if produ- cible, parol evidence of its contents is not admissible, 40. Illustrations, 41, 42. I CHAPTER v.— Consideration, 43-51. Failure of consideration — unsealed instruments. — Parol evidence is admissible to show a failure or original lack of consideration of an unsealed contract, as between the parties, 43. Reasons of the rule, 43, Exceptions, 43. Sealed Instruments. — At ancient common law a seal conclusively imported a consider- ation, but this rule is relaxed by modern legislation, in some States, 44, Illustra- tions, 44. Rule in cases of voluntary specialty, 44. SYNOPSIS OF CONTENTS. IX Heal consideration. — Parol evidence is admissible to show the real consideration and purpose, although it contradicts the recital ; and to contradict the acknowledg- ment of payment ; but not to cut down the (consideration, except in an action to correct a mistake ; nor to defeat the instrument, 44. Illustrations, 45-51. Transfer of personalty as security, 46. Mortgage as indemnity, 50, 51. CHAPTER VI.— Formation and Delivery, 52-60. Conditional delivery.— Vaxol evidence is competent to show that a writing, in form a complete contract, and delivered, was not to become binding until the perform- ance of some condition resting in parol, 52. Illustrations, 52-54. Inconsistency between condition and written terms, 54, 55. Lack of legal existence. — Parol evidence is admissible to show that an apparent con- tract never had a legal existence, 55-59. Illustrations, 55^59. Knowledge of mental incapacity, 59, 60. ' CHAPTER VII. — Legality of Agreements, 61-65. Contract apparently valid. — Parol evidence is competent to show that an executory contract was made in furtherance of objects forbidden by statute, by common law, ; or by the general policy of the law, 61. Illustrations, 61, 62. Executed illegal contract. — But an executed illegal contract may not be impeached by any party to it, 62. Reason of the rule, 63, 64. Contract apparently invalid. — Parol evidence is admissible to show that a contract apparently invalid is really valid, 64. Illustrations, 64. Contrary doctrine, 64, 65. Reason of the rule, 65. CHAPTER VIII.— Fraud, 66-72. Actual fraud, etc. — An instrument may be avoided for fraud, undue influence, gross inequality, or duress, by the party to it thus defrauded or overcome, or by a third party whom it was executed to defraud, 66. Definitions, 66, 67. Contracting not to set up fraud in defense, 67-69. Relations enabling the operation of fraud, etc., 69. Illustrations, 6g, 70. Constructive fraud. — Where one occupies a position of trust for, or sustains a relation of legal or natural authority or influence over, another, any gift or benefit from the latter to the former, or any financial settlement between them, is presump- tively void, and can be enforced or retained only upon the clearest proof of good faith 6n the part of the former, and of understanding and intention on the part of the latter, 70. Constructive fraud as to wills. — The doctrine of constructive fraud does not apply to wills, 71 CHAPTER IX.— Mistake, 73-98. Mistake as to collateral matter. — A mutual mistake as to a fact wholly collateral and not affecting the essence of the contract will not invalidate the contract, 73. Illustration, 73. As to deeds. — Evidence of mere mistake is incompetent at law to contradict a deed, 73. Illustrations, 73, 74. As to insurance policies. — Parol evidence is competent to show a mistake either of insertion or omission, made by an insurer, in the application or in the policy, even in an action to enforce the policy, on the ground of estoppel, 74. Limitation, 74. Illustrations, 75. X SYNOPSIS OF CONTENTS. Reformation for mistake of fact. — A court of equity may reform any agreement oa clear evidence of mutual mistake of fact, or of such mistake on one side and fraud on the other ; such evidence is also admissible where a plaintiff alleges such mis- take and seeks to have the agreement enforced as corrected ; and in an action for specific performance the defendant may give such evidence to show his own mis_ take or mutual mistake, 76. Illustrations, 77, 78. " More or less," 78, 79. Mistake of law. — Equity will generally relieve either party against a mutual mistake of law affecting the written expression of their agreement, but not against a unilateral mistake of law, unless the mistake was brought about by or known to the other party ; and not against a mutual or a unilateral mistake respecting the general law on the subject of their agreement, 79. Illustrations, ,79. Explana- tion of the doctrine, 80. 8i. Further illustrations, 81-94. Contrary authorities. 94, 95. Limitation where party accepts deed with knowledge of defect, 95. Limitation where money is paid under mistake of fact, 97. Illustrations, 97, 98. CHAPTER X.— Modification, Discharge, Substitution, Waiver, 99-114- General- rule. — Evidence of a parol agreement is admissible to extend the time or tiiange the place or manner of performance of a prior unsealed written contract, and before breach thereof and for a new consideration to waive, vary, discharge or annul it, or any provision of it, 99. Illustrations, 99-101. As to necessity for new consideration, loi. Limitations, loi. Illustrations, loi. Exception as to sealed instruments — This rule does not apply to sealed instruments, at law, but it is otherwise in equity, loi. Illustrations, 102. Rule in equity, 102. Illustrations, 102-106. Discharge of sealed contract. — But a contract under seal may be shown to have been discharged by the performance of a new parol agreement, 106. Illustrations, 106. Waiver as to insurance policies. — Parol evidence is competent to show a waiver of a breach of a condition or warranty in a policy of insurance, either on the ground of knowledge of the facts in the agent at the time of issuing the policy, or of such subsequent conduct on the part of the insurer or its agents as subject the insured to expense and lead him to believe that the breach is waived, 106. Explanation, 106, 107. Illustrations, 107-110. Contrary authority, 110-113. Custom to accept premiums, 114, 115. CHAPTER XL— Patent Ambiguities, 116-124. Patent ambiguities. — Parol evidence is admissible in respect to the subject matter, the situation and relations of the parties and all the circumstances, to explain any ambiguity apparent upon the face of the instrument ; but mere evidence of in- tentionv except as derivable from such proof, is incompetent in respect to such patent ambiguity, 116. Lord Bacon's maxim, 116, 117. Cowen's criticism, 117, 118. Story's view, 118. Other authorities, 118-123. Conclusion, 123. CHAPTER XII. — Incomplete Agreements, 125-178. Omissions and collateral agreements. — Where the instrument does not express the en- tire agreement, and does not appear to express the entire agreement, or there is a collateral agreement not embraced therein, parol evidence is competent to show the omitted part, whether contemporaneous or antecedent, if it does not conflict with the instrument, 125. Incompleteness need not be manifest, 125- 129. Illustrations of rule, 129-142. Criticisms on Chapin v. Dobson, 133. Extension to sealed instruments, 142. Illustrations, 142-147. The contrary- doctrine, 147-150. SYNOPSIS OF CONTENTS. XI Character of the additional matter. — The additional matter must be clearly collateral, and consistent with the written instrument, 150. Illustrations, 151-157. Rule- as to leases. 157-178. CHAPTER XIII. — Mercantile Contracts, 179-200. Subject matter and circumstances. — Parol evidence is admissible, in the construction of contracts, to define, the nature and qualities of the subject-matter, the situatioii and relations of the parties, and all the circumstances, in order that the court may put themselves in the place of the parties, see how the terms of the instrument aSect the subject-matter, and ascertain the signification which ought to be given, to any phrase or term in the contract which is ambiguous or susceptible of more- than one interpretation ; and this, although the result of the evidence m^y be to contradict the usual meaning of terms and phrases used in the contract ; but if the words are clear and unambiguous, a contrary intention may not be derived from the circumstances, 179. Illustrations 180-190. Railroad tickets, 190, Conversations and acts of parties. — The conversations and acts of the parties to a con- tract, at and about the tinle of the making cf the contract, as well as subse- quent to the making of the contract^ are admissible in evidence to show what sense the parties attached to any term or pl;irase used in the contract, which is in itself susceptible of more than one interpretation, or which, viewed in the light of the evidence explanatory of the subject-matter the relations of the par- ties, and the circumstances, may reasonably be susceptible of more than one interpretation, 190-195. -Illustrations, 191-194. Contrary authority, 195, ig6. Practical interpretation. — Where the language of the contract is indefinite or ambig- uous, the practical interpretation of the parties themselves, by thei.- acts under it, is entitled to great if not controlling influence, 195-199. Illustrations, 195-199. Limitation, 199. Illustrations, 199. Limitation of general rule. — Evidence under this rule may never be admitted if it is. in direct contradiction of the intrinsic meaning of the language of the contract, or its meaning as settled by usage and custom, [99. Illustrations, 200-201. CHAPTER XIV.— Usage, 202-229. Usage to explain terms. — Extrinsic evidence is admissible in the construction of a mercantile contract, to show that phrases or terms used in the contract have acquired, by the custom of the locality, or by the usage of trade, a peculiar sig- nification, not attaching to them in their ordinarj use, and this whether the phrases or terms are in themselves apparently ambiguous or not, 202. Unam- biguous words — doctrine of Starkie and Stephen. 202, 203. The earlier cases,- 203. The later cases, 203. Particular words explained by usage, 203, 204. Further illustrations, 204-216. Usage to annex incidents. — Parol evidence is competent to annex to a contract a cus- tom or usage of the business and locality, known ta the parties, or so general and well settled as to be presumed to be known to them, and with reference to which they must be deemed to have contracted 216-228. Distinction between explanation of terms and annexation of incidents, 216. Early views of this- doctrine, 216-218. The modern doctrine, 21S, 219. Illustrations, 220-224. Character of the usage, 224-227. Individual usage, 227, 228. When usage not provable. — Evidence is inadmissible to prove a custom or usage that: is vague, inconclusive, unreasonable or absurd, or that varies an express agree- ment, or infringes a sound rule of law, 228-237. Illustrations, 229. Xll SYNOPSIS OF CONTENTS. CHAPTER XV.— Negotiable Instruments, 238-278. Date and issue. — Parol evidence is competent to sliow th.it a note was not issued until after its date, 238. Incapacity. — Parol evidence is competent to show the total incapacity of the signer, as between the parties, or his personal privilege to avoid it, as between any parties, 239. Tarties. — Parol evidence is competent to identify the parties in case of ambiguity or uncertainty, 239. Amount. — Parol evidence is not competent to supply an entire omission of the amount in the body, 244. Time of payment. — Parol evidence is competent to show an agreement to extend the tim' of payment as between the parties, 244. Medium and mode of payment. — Parol evidence is competent to explain an ambiguity in the character of the funds in which the paper is payable, 245. Conditions of payment. — Parol evidence is incompetent to show that a note was pay- able only upon a condition, as against innocent third parties, 246. Delivery on condition. — But the delivery of a note may be conditional ; as to be operative only upon the occurrence of a certain event, 248. J3ischarge. — As between the origina;l parties a note may be shown to have been dis- charged by the performance of an oral agreement, 250. -Consideration. — As between the immediate parties, or as to subsequent parties with previous notice, want of consideration, or failure in whole or in part, or wrongful diversion of the note from its purpose, maybe shown by parol, 251. Illustrations, 251-254. Memoranda. — Parol evidence is admissible to show when, by whom, and in what cir- cumstances a memorandum on a note wa." made, 254. , Obscurities. — Parol evidence is admissible to explain obscurities in the writing, whether intrinsic or the result of wear or accident, 255'. Guaranty. — An oral promise that a note is good and will be paid when due, made by the owner on a transfer of the note for value, is valid, 255. Jienewal. — Parol evidence is inadmissible to prove a contemporaneous agreement to renew ; but otherwise if subsequent and upon a consideration, as between the original parties, 255. Acceptance. — A bill may be orally accepted in the absence of a contrary statutory provision, 255. Waiver. — Parol evidence is competent to show a waiver by an indorser of presentment, demand, protest and notice, or to show any other excuse for the omission, 255-257. Alteration. — Parol evidence is competent to prove material alterations, even as against a bona fide holder, and to explain alterations, 257. , Forgery — ratification. — Parol evidence is competent to show forgery, or ratification of a forged signature, 258. Fraud. — Parol evidence is admissible as between the original parties to show fraud or duress, and so as to third parties with notice, or without having paid value, 259. Mistake.— VaxoX evidence is admissible between the original parties to show mistake and to have it corrected, 259. Bona fide holding. ~-Va.ro\ evidence is competent to prove or disprove that a third party paid value and took without notice of defenses, in the usual course of business, 259. Jndorsers estopped.— h-a. indorser may not dispute the validity of the maker's signature as against an innocent hol(ier for value, 259. SYNOPSIS OF CONTENTS. XIU Relations of parties — Parol evidence is competent, between the immediate parties, to show their real relation, and in respect to third parties, that such relation was known to them, although different from the apparent relation, 260-268. Actions for contribution, 261, 262. Showing relations as to third parties. — But the apparent relation of the parties may not be changed nor their agreement shown by parol to the detriment of an inno- cent and ignorant third party, 262-268. Contrary authority, 267, 268. Irregular indorsement before payee, — In the case of an irregular indorsement before the payee, as between the immediate parties parol proof is competent to establish their real position and relations' and show their agreement and intention, 268-274. Orders. — In case of an order, not negotiable, whose language is ambiguous, the attendant circumstances may be shown to determine the intention and under- standing of the parties, 275. Custom — Custom is provable as to the mode of giving notice of protest, in the absence of statutory regulation, 275. Collateral mortgage in hands of a bona fide purchaser. — Parol evidence is incompetent to subject a chattel mortgage, executed as security for the payment of a prom- issory note, to prior equities in the hands of a bona fide purchaser of the note and assignee of the mortgage, 275-278. CHAPTER XVI.— Deeds, 279-345. Delivery. — Parol evidence is admissible' to show that a deed was never delivered, or was delivered upon an unfulfilled condition, or in escrow, 279-287. Delivery to grantee in escrow, 280-284. Delivery to attorney, 284. Delivery to grantee for delivery to third person in escrow, 284-286. Completeness essential to absolute delivery, 287-288. Time of delivery, 287. Capacity. — Parol evidence is admissible to impeach a deed, directly or collaterally, by showing lack of capacity in the grantor ; as in case of infancy, insanity, coverture, drunkenness, etc., 287, 288. Consideration — unexpressed. — An unexpressed consideration may be shown by parol, 288. Consideration — expressed — how far subject to inquiry. — Parol evidence is competent to contraditt the recital of receipt of the consideration, or to show an additional or different consideration, but not to contradict the deed as to price or quantity, 288-294. Contrary cases, 294, 295. Consideration- — showing deed to be u mortgage. — In equity a deed may be shown by parol to have been intended as a mere mortgage, 295. Consideration — illegal. — But the consideration of a deed may not be impeached on account of its illegality as between the parties, 296-302. Illustrations, 296-300. Contrary doctrine, 300. Distinction between executory contract and deed, 301, 302. Executed transfer, 302. Ack7iowledgment.-^A.n acknowledged deed may be proved by parol, 302. Acknowledgment — between the parties. — Between the parties to a deed the acknowl- edgment may be impeached by parol evidence for fraud, collusion, or imposition, but not otherwise, 303. Acknowledgment as to innocent grantees. — Parol evidence is inadmissible to impeach the acknowledgment as against an innocent grantee without notice, 304, Explanation of ambiguities. — Parol evidence is admissible to explain an ambiguity in a deed, ^s to boundaries or other descriptions of land conveyed, or as to the names or identity of the parties, or as to the date, or any other ambiguity, and to aid in deciphering any obscuAty in the writing, 305-316. XIV SYNOPSIS OF CONTENTS. Boundaries — declarations of former owner. — Parol declarations and admissions of one deceased, while in possession of land, claiming ownership, as to the true boundary, are admissible if made while pointing out the boundary, 316. Boundaries— reputation.— 1\ie. boundaries of a private estate, when in doubt by the deeds, may be proved by reputation, and by the declarations of disinterested per- sons made before legal controversy had arisen, 317-322. Illustrations, 3I7-3I9- Contrary authority, '319-322. Boundaries— practical location— acquiescence. — Where the description of the premises in a deed is definite, certain and unambiguous, no extrinsic evidence is admissible to show acquiescence in a different location, unless a possession be shown under claim of title for such a length of time as to bar a recovery in ejectment. If however the description is vague, obscure or ambiguous, or the monuments referred to have become decayed or destroyed, such evidence is admissible in aid of the deed, 322-328. Boundaries — agreement. — A parol agreement between adjacent owners of land to fix a disputed division line, is valid and binSing by way of estoppel in those cases where the grant is so indefinite, uncertain, or ambiguous that the true line is not ascertainable therefrom, but in no other, 329-332. Resulting trust. — In the absence of statutory enactment to the contrary, parol evidence is competent to engraft a resulting trust upon a deed, even after the death of the nominal purchaser, in favor of a third party paying the consideration, 333-335. As to covenants and reservations. — Parol evidence is incompetent to add any covenant to a deed, or to enlarge or contradict any covenant, or create a reservation, 335- 345. Evidence inadmissible to enlarge or contradict, 335-337. Admissible, 338- 340. Oral condition between execution and delivery, 340, 341. The rule in actions for specific performance of contracts for deeds, 341-345. Consideration of love and affection, 345. CHAPTER XVII. — Receipts, Bills of Lading, Releases, 346-375. Receipts. — A mere receipt, not constituting nor embodying a contract, may be contra- dicted or explained by parol evidence as to the consideration or as to what was apparently intended to be included or affected thereby, 346-349. Bills of lading — as between parties. — The bare recital in a bill of lading of the receipt, quantity, value, or condition of the property may be contradicted as between the parties by parol, 349. As to bona fide assignees. — The recital in a bill of lading of the receipt of the property may be contradicted, even as against a bona fide consignee, or transferer of the bill, for value, where the bill was signed by an agent authorized only to sign bills on receipt of property, but who signed the bill without receiving the property, 350-373. Corroborating authorities, 350-358. Contrary authorities, 358-373. Contract collateral or supplementary, — Parol evidence is competent to show a contract collateral or supplementary to the bill of lading, 373. Jion-assent to stipulations. — Parol evidence is competent to show that the shipper did not assent to stipulations in the receipt or bill of lading, 374. Releases. — Parol evidence is inadmissible to contradict a formal release or to add con- ditions or make exceptions to it, 374. CHAPTER XVIII.— Subscriptions, 376-388. Subscriptions. — A voluntary unsealed subscription for a public or charitable purpose may be avoided by evidence that no expenditure has been made or liability in- curred on the faith of it, and it may be enforced by proof to the contrary, 376- 384. Mutual promises, 383. Effect of seal, 283. SYNOPSIS OF CONTENTS. XV Conditional subscription. — If however the promise is to pay upon a specified condition, it is enforceable upon proof of the fulfillment of that condition, 384. Conditional subscriptions — character, etc. — If a subscription to stock is conditioned not to be binding unless a specified aggregate sum is subscribed, parol evidence is competent to show the character of other subscriptions — whether made in good faith or not, 385-387. Subscription to stock — A subscription to stock is not variable by parol except in case of fraud or mistake, 387. Kevocation, 388. Gifts, 388. CHAPTER XIX.— Bonds, 389-418. Character of signing. — Parol evidence is admissible to show the character in which the obligors signed, 389, Conditional delivery. — Where a bond is not executed by all the persons named in it as obligors, parol evidence is admissible to prove that it was delivered to the obligee by some of the persons executing it upon the condition that the others named as obligors should also join in the execution, and the result of such evidence is to render the bond void as to those so executing it, and as to all others subsequently executing it, even without condition ; but this rule does not apply to a bond per- fect upon its face, nor to a bond not executed by all the obligors named therein, but delivered by those executing, not upon such express condition, but upon the mere faith that the others will execute it, 389-402. Mode of payment. — Parol evidence is admissible to show an agreed mode of payment and discharge other than that specified in the bond, 402. Municipal bonds — impeachment. — Parol evidence of failure to comply with statutory requirements is admissible to impeach municipal bonds, ( i ) in the hands of the original obligees ; ( 2 ) in the hands of any subsequent holder taking them with knowledge or notice of such infirmity ; ( 3 ) in the hands of innocent transferees for value and in good faith, unless the bonds contain recitals going to show that they were regularly issued, 403-408. Ratification. — Parol evidence is admissible to show ratification by the municipality of bonds irregularly issued but not ultra vires, 408. CHAPTER XX.— Judgments, 409-434. Res adjudicata — grounds of decision. — On a plea of res adjudicata, evidence is admis- sible to show that a particular matter came in question and was under considera- tion, or the contrary, and to show the grounds of decision, 409-434. Judgment of another State — impeachment, — A judgment record of another State may be impSached by parol proof of fraud or want of jurisdiction, but not other, wise, 413-416. Domestic judgment — impeachment. — A judgment of a domestic court of general juris- diction may not be collaterally impeached by parties or privies by parol if it shows jurisdiction upon its face, 416-430. Limitations of the rule — strangers, 430. Indemnitors and sureties, 430. Identification of parties. — Parol evidence is competent to identify the parties, 433. Lost judgment. — Parol evidence is admissible to prove that the record of a judgment has been lost or destroyed, and to show its contents, 433. Cause of action. — Evidence is inadmissible to contradict the record as to the char- acter of the cause of action, 434. XVI SYNOPSIS OF CONTENTS. CHAPTER XXI.— Wllls, 435, 494.' Explanation of ambiguities. — i. Where the object of a testator's bounty, or the sub- ject of disposition, is described in terms applicable, indifferently, to more than one person or thing, for the purpose of ascertaining the beneficiary, identifying the thing bestowed, or determining the quantity of interest given, in a will, the court may inquire into every material fact relating to the claimant, the property claimed, and the circumstances and affairs of the testator and his family, and the claimant ; and the testator's declarations before, at, or after the making of the will, are ad- missible in this view ; but no evidence of mere mistake on the part of the testator or the draftsman is admissible. 2. A description partly false may be made opera-" tive by rejecting the false part, provided the remaining portion reasonably corre- sponds with the person, thing, or interest indicated by such extrinsic evidence ; but no words can be added to any description, 435-483. Corroborative author- ities, 439-471. Contrary authorities, 471-478. Time of declarations, 478-481. Intention, 481. Deciphering. — Parol evidence is admissible to decipher the writing or translate the language of a will or inform the court of the meaning of words, 483. Ademption. — Where the will is not explicit, parol evidence is competent on the question of ademption of legacies, including proof of the situation and circumstances, and of declarations of the testator at and after the making of the will, 484. Oral will. — An oral promise to give a legacy or provide for one by will, on an ex- ecuted consideration, is valid and enforceable, 484, 485. Revivor and revocation. — On the question of revivor or revocation of a will, parol evidence is competent, including the declarations of the testator, to characterize the act and show his intent, 485-493, JLost will. — The contents of a lost will may be proved by parol, 493, 494. TABLE OF CASES CITED. The References are to the Pages. Page. Abbe V. Eaton '. 349 Abbott V. Abbott 307 Abbott V. Allen 342 Abbott V. Bates 225 Abbott V. Massie 483 Aberdeen v. Blackmar. 433 Abrams v. Pomeroy 16 Adair v. Adair 50 Adams v. Barrett 302 Adams v. Flanagan 261 Adams v. Gray 130 Adams v. King 239 Adams v Lambard 289 Adams v. Saratoga, etc. , R. Co. . . . 425 Adams v Wilson 245, 246 Adams Ex. Co. v. Schlessinger. . . . 366 .(Etna Live Stock, etc., Ins. Co. v. Olmstead 74, no Agawam Bank v. Strever i8g Agric. Ins. Co. v. Montague 58 Akers v. Hite 99 Albright v. Voorhis 199 Alderson v. Clay 19 Aldrich v. Kinnfey 413 Aldrich v. Smith 258 Alexander v. Wilkes 249 Alger V. Kennedy 314 Allan V. Sundius 216, 220 Allegre v. Ins. Co 204, 206 AUemania F. Ins. Co. v. Hurd. ... 114 Allen V. Allen 484 Allen V. Bowen 460 Allen V. Davis 6g Allen V. Furbish 246 Allen V. Lee 294 Allen V. Lyons 445, 454 Allen V. Pink, 125, I2g, 136, 164, 346, 347 Allen V. Rundle 256, 274 Page. Allen V. Sowerby 99 AUer V. AUer 44 Allis V. Billings 287' Almgren v. Dutilh 192- Alsop V. Goodwin 245; Alves V. Hodgson 17 Alvord v. Syracuse Savings Bank, 406, 407, 408 Am. Cent. Ins. Co. v. McCrea. .114, lis American, etc., Ins. Co. v. McLan- athan no Ames V. Hoy 433 Amherst Academy v. Cowles 43, 383 Amsden v. Dubuque, etc., R. Co. . 40^ Anderson v. Elsworth '69 , Anderson v. Pitcher 217 Anding v. Davis 484. Andrews v. Brewster 137 Angell V. Duke 131, 160, 170 Angier v. Schieffelin 304 Annett v. Terry 433 Anson v. Winnesheik Ins. Co 74. Anthony v. Anthony 295 Anthony v. County of Jasper 405 Anthony v. Harrison 43, 44 Appleton v. Phoenix M. L. Ins. Co. 114 Armour v. M. C. R. Co., 350, 356, 358, 365, 371 Armstrong v. Burrows 15, 16 Armstrong v. Munday 337 Armstrong v. Risteau 31& Arrowsmith v. Gleason 416 Artcher v. Douglass 24. Arthur v. Arthur 91 Arthur v. Roberts i& Ashbee v. Pidduck 25 Ashley v. Robinson 33+ Ashton, Goods of 449 XVIU TABLE OF CASES CITED. Page. Astor V. Union Ins. Co 204, 205 Asylum v. Emmons , 445 Atchison v. Pease 332 Atlierton v. Brown -. . 109 Atkins V. Bordman ,. 3" Atkins V. Brown 243 Atkijlson v. Allen 430 Atkinson v. Truesdell 214 Atlantic Ins. Co. v. Wright no A.tlee V. Bartholemew 157 -Atwater v. Clancy 130, 138, 2i5 Atwater v. Schenck 312 Atwood T. Sellar 221 Audenreid's Appeal Ji Auerbach v. Le Sueur Mill Co 406 Austin V. Holland 18 Avery v. Stewart 204 Ayer v. Manuf. Co 340 Ayer v. R. W. Bell Manuf. Co 139 -Ayerst v. Jenkins 62, 299, 302 Ayres v. Home Ins. Co no Ayres v. Weed 479 jBabcock v. Mont. County M. F. Ins. Co 204 Bach V. Levy 140 JBacon v. Burnham 273 IBacon v. Fitch . . j 239 Baer's Appeal 151 Bailey v. Bensley 221, 228 Bailey v. Martin 433 Bailey v. Smith 276 Bainbridge v. Brown 71 Bainbridge v. Wade ■ 181 Baker v. Massey 80, 83 Baker v. Stonebraker 417 Baker v. Vining 333 Baker v. Whitesides 99, loi Baldwin v. Bank of Newbury 22 Baldwin y. Brown 327 Baldwin v. Carter 76 Baldwin v. Dow 2S9 Baldwin v. Palmer 343 Baldwin v. Tuttle 294 Baltimore, etc., Co., v. Brown . .373, 374 Bait., etc., R. Co., v. Wilkens. .350, 351 Bancroft v. Grover 312 Bancroft v. Otis 71 Bangs V. Bangs 401 Bank v. Bank 240 Bank v. Fordyce 18 , Page. Bank v. Hall 316 Bank v, Kennedy 18 Bank v. Laveille 355 Bank V. Strever 316 Bank of Batavia v. N. Y., etc., R. Co 350, 356, 360 Bank of Utica v. Finch 47 Barclay v. Weaver 256 Barger v. Caldwell 206 Barker v. Borzone 221, 224 Barker v. Bradley 46, I25, 288 Barker v. Buel 50 Barker v. Railroad Co 199 Barker v. Wheelip 19, '35 Barkley v. Tarrant 21 Barlow v. Lambert 16, 235 Barnard v. Kellogg 219, 224, 228 Barnes v. Ferine 382 Barnes v. Shelton 252 Barnes v. Simms 478 Barnes v. Vaughan 275 Barnet v. Abbott l6 Barnet v. Barnet 303 Barnet v. Shackleford 303 Barney v. Forbes 13 Barnum v. March. F. Ins. Co 213 Barons v. Brown 14 Barreda v. Silsbee 186 Barrett v. County Court 408 Barrett v. Mut. Ins. Co 112 Barrett v. Stow 192 Barrett v. Union M. Ins. Co 107 Barrow v. Hunton 416 Barrows v. Lane 268 Barry v. Bennett 181 Barry v. Colville 49, 137, 295 Barry v. Hamburgh, etc., Co 295 Barry v. Morse 256 Barry v. Ransom 142 Barter v. Greenleaf 44 Bartlett v. Emerson 320 Bartlett v. Stauchfield 134 Bartlett v. Tucker 59, 240 Barton v. McKelway 209 Bassett v. Bassett 291 Bassett v. Percival 138, 149 Bates v. Delayan 342, 343 Bates V. Todd 350 Batterman v. Pierce. . .130, 141, 152, 173 Baugher v. Merrym^n 295 TABLE OF CASES CITED. XIX Page. Baxter v. Earl of Portsmouth 60 Baxter v. Massasoit Ins. Co 222 Bay V. Shrader 254 Bayard v. Malcolm 172 Bayley v. Taber 238 Bayne v. Stone 18 Beach v. First M. E. Church 384 Beach v. Packard 289 Beal V. Blair 310 Beale v. Hall 300 Beall V. Poole 52, 53 Bean v. Parker 395 Bean v. Pioneer Mining Co., 24, 241, 243 Beard v. Talbot , 317 Beard v. White 244 Beardsley v. Knight 83 Beason v. Kurz 194 Beaumont v. Fell 440, 449, 479 Beaumont v. Reeve 62 Beaupre v. Dwyer 146 Bedard v. Bonville 187 Beecher v. Parmelee 328 Beeler v. Frost 256 Begg V. Begg 31c Behrman v. Linde i5, 189 Balden v. Seymour 290, 291 Belknap v. Sealey 79 Bell V. Americus, etc., R Co 388 Bell V. Dagg 258 Bell V. Lord Ingestre 264, 286 Bell V. Martin 185 Bell V. Sawyer 308 Bement v. Claybrook. 195 Bennett v Belt's Admr 139 Bensell v. Chancellor : 287 Benson v, Markoe 8i Bentley v Doggett 225 BentoD V, Martin 52, 152, 249 Bergin v. Williams 189 Berkie v v. Watling 360 Berkmeyer v, Kellerman 71 Bernhart v. Brunner 248 Berond v. Lyons 295 Berry v Gate^ 385 Best V. Hoppie 273 Beihea V. Bird 317 Betts V Jackson 492 Betts V. Union Bk. of Maryland, 289. 294 Beyerstedt v Winona Mill Co 12 i Bibb V, Hitchcock , 252 Page. Bibb V. Reid 394, 400 Bibb V. Thomas 482, 486 Bickerstaff v. Marlin 71 Bigelow V. Colton 263, 265 Bigelow V. Stearns 424 Biggs V. Piper 17, 238 Bilbie v. Lumley g? Billage v. Southee 71 Billings V. BiUings 253 Bingel v. Volz 472 Bingham v. Bingham 79 Birch V. Depeyster 191, 195 Bird V. Stark 333 Bishop V. Busse 134 Bishop V. Dillard 247 Bishop V. Felch 294 Bishop V. Morgan 476, 477 Bissell V. City of Kankakee 405 Bissel V. Price 349 Eissinger v. Guiteman 249 Bivins V. Jarnigan 62 Black V. Pratt 310 Black V. Shreve . .' 283 Black V. W., etc., Ry. Co. . .55, 350, 353 Blackerby v. Cont. Ins. Co 138 Blackettv. Royal Ex. Assur. Co., 203, 228 Bladen v. Wells 292 Blaine v. Upton 292 Blair v. Buttolph 388 Blair v. Corby 192 lilake V. Cole 143 Blake v. Coleman 244 IJIakeman v. Blakeman 80 Blaney v. Rice 315 Blewett V Cable Ry. Co 284, 385 Blewett V. Boorum 143 Blodgett V. Ilildreth 333 Bloom V. Burdick 424, 425 Blossom V. Griffin 125, 130, 182 Blow V. Vaughan 306 Blower's Trusts 450 lUundell v. Gladstone 479 Boardman v. Lessees of Reed, 119. 317, 319 Boardman v. Roe's Trustee 297, Bodine v. Exch. F. Ins. Co 109, 113 liodurtha v. Goodrich ; 421 Boehm v. Lies 155 I'ogart V. McClung 256 BoUes V. Beach 288, 289 XX TABLE OF CASES CITED. Page. BoUes V. Sachs 44 Bolman v. Overall 484 Bolton V. Jacks 426 Bond's Appeal 477 Bond V. Clark 149 Bonnert v. Penn. Ins. Co 115 Bonney v. Morrill 135 Bookstaver v. Glenny 131, 252 Boorman v. Am. Ex. Co 55, 374 Boorman v. Jenkins 64, 135 Booth V. Hynes 289 Booth V. Robinson 48 Borden v. Fitch 419, 421 Borland v. Walrath 303 Bosoowitz V. Adams Ex. Co 374 Bottomley v. Forbes 216, 220 Bourne v. Gatliff 228 Bowe V. Wilkins 409 Bowen v. Bell 47, 288, 290, 291 Bowen v. Slaughter 21, 311 Bowen v. Stoddard 237 Bowler v. Huston 413 Bowman v. Hiller 259 Box V. Barrett 458 Boyce v. Wilson 48 Boyd V. Bank of Toledo 256 Boyd V. Cleveland 256 Boyd V. De La Montagnie 70 Boyd V. McLean 333 Boykin v. Bank of Mobile 245 Boylan v. Meeker 483 Brackett v. Barney 283, 286 Bradford v. Manly 138, 194 Bradish v. Yocum 311 Bradley v. Anderson 245 Bradley v Bentley 51 Bradley v. Blodget 292 Bradley v. Rees 467 470 Bradley v. U. S 186 Bradley v. Wash., etc., Steam Packet Co 180 Bradley v. Wheeler 217, 224, 226 Bradshaw v. Combs 244 Bradstreet v. Lees 363 Bradstreet v. Rich 125 Bradwin v. Harpur 449 Brady v. Cassidy 190, 237 Brady v. Cubitt 493 Brady v. Read 374 Bragg V. Massie 295 Page. Brake, Goods of 47r Braly v. Henry 251 Braman v. Bingham 284 Branson v. Oregonian Ry. Co 52, 59 Brawley v. U. S 200 Brearley v. Brearley 452 Breneman v. Furniss ., 268 Bretto V. Levine 145 Brewer v. Woodward 268 Brewster v. Reel. . . . , 55 Brice v. Hamilton 346 Brice v. Miller 292 Brick V. Brick 47 Bridge v. Gray 346 Bridgeport Bank v. Dyer 228 Bridgeport F. & M. Ins. Co. v. Wil- son : 431 Bridgeport Sav. Bank v. Eldredge . 427 Bridgewater Acad. v. Gilbert 378 Bridgman v. Green 295 Brigg V. Hilton 139, 152, 347 Briggs V. Partridge 25, 26 Briggs V. Sfeymour 294 Brigham v. Rogers 165, 167, 339 Bright V. Carpenter 268 Brill V. Tuttle 56, 57, 275 Britton v. Lorenz 48 Bronson v. Noyes 393 Brook V. Latimer 252 Brooke v. N. Y., etc., R. Co . . .356, 364 Brooks V. Owen 294 Brooks T. White 346 Broughton v. Hutt 92 Brown v. Beebe 244 Brown v. Bookstaver 244 Brown v. Bowen 360 Brown v. Brooks 210, 212, 354 Brown v. Brown 494 Brown v. Byrne 231 Brown v. Caldwell 332 Brown v. Cattaraugus Co. M. Ins. Co 109 Brown v. East Slate Co 52, 250, 434 Brown v. Everhard loi Brown v. Foster 229 Brown v. Gilman 240 Brown v. Hull 246 Brown v. Jodrell 60 Brown v. Kinsey 62 Brown v. Kough 228 TABLE OF CASES CITED. XXI Page. Brown v. Lamphear 79, 87 Brown v. Nichols 421 Brown v. Powell Duffryn Steam Coal Co 352, 355 Brown v. Reynolds 283 Brown v. Saltonstall 469 Brown v. Spofford . . . / 245 , 264 Brown v. State Ins. Co 115 Brown v. Straw 257 ^rown V. Thurber 40 Brown v. Wakeman 105 Brown v. Watts ' 17 Browning v. Merritt 273 Browning v. Provincial Ins. Co. ... 27 Bruce v. Slemp 17, 287 Bruce v. Roper Lumber Co 40 Bruce v. Wright 59, 268 Brunhild v. Freeman 2 Bryan v. Hunt gg, 100, 125, 139 Bryan v. Swain 335 Bryant v. Crosby , 48, 151 Bryce v. Lorillard F. Ins. Co 75, 91 Buchanon v. Adams 250 Buchtel V. Mason Lumber Co 50 Buck V. First Nat. Bank 62, 252 Buckle V. Knoop 216, 225 Buckley's Appeal 289 Buckley v. Bentley 256 Bull V. Talcot 386 Bulwinkle v. Cramer 24, 28 Burch V. Smith 66 Burditt V. Hunt 17, 19, 135, 309 Burhans v. Johnson 387 Burke v. Cruger 389 Burkhauser v. Schmitt 97 Burlingame v. Brewster 240 Burnham v. Comfort 484 Burnham v. Dorr 289 Burns v. Morrison 15 Burns v. Thompson 40, 41 Burr V. Broadway Ins. Co 184, 200 Burris v. Fitch 329 Burrows y. Turner 22 Burt V. Saxton 103 Burton v. Hansford 269 Burwell v. Jackson 343, 344 Busby V. N. A., etc., Ins. Co... 115, 222 Busch V. Pollock 16 Buswell V. Poineer 346, 347 Butler y Butler 71 Page. Button V. Tract Society. . . .446, 454, 463 Buxton V. Beal 40 Buxton V. Massasoit Ins. Co 115 Buzzell V. Willard 147, 338 Bybee v. Hageman 310 Byers v. Danley 333 Byington v. Simpson 134 Cabot V. Christie 335 Cadwallader v. West 71 Cagwin v. Town of Hancock . . .406, 407 Cairo & St. L. R. Co. v. Mahoney. 14 Cake V. Pottsville Bank 268 Gaidar v. Dobell 23, 27 Cal. Ins. Co. v. Gracey 115 Callahan v. Stanley 16 Callen v. Ellison 416, 417, 420 Callender v. Dinsmore 16 Calverley v. Williams 87 Cameron v. Cameron > 65 Campbell v. Brown 420 Campbell v. Consalus 411 Campbell v. Dearborn 295 Campbell v. Johnson n6 Campbell v. Merchants, etc. Ins. Co. no Campbell v. Upshaw 245 Canady v. Stiger 337 Canal Bank v. Bank of Albany .... 258 Canal Co. v. Ray loi, 102 Cander v. Citizens' Ins. Co 115 Canedy v. Marcy 80, 81, 83, gi Caperton v. Schmidt 410 Card V. Grinman 492 Carmichael v. Carmichael 484 Carpenter v. Earns worth 241 Carpenter v. Longan 276, 278 Carpenter v. McLaughlin 263 Carpenter v. Oakland 417 Carr v. Bartlett 376 Carr v. Dooley 338, 339 Carr v. Montefiore 186 Carr v. Nat. Security Bank 379 Carr v. Rowland 269 Carrigan v. Lycoming F. Ins. Co. . 115 Carroll Co. v. Ruggles 402 Carrugi v. Atl. F. Ins. Co 114 Carson v. Jersey City Fire Ins. Co. "3, "4 Carter v. Hamilton 244 Carter v. McArtor 96 Case V. Phoenix Bridge Co .'.138, 155 xxu TABLE OF CASES CITED. Page. Casler v. Com. M. L. Ins. Co i6 Cassidy v. Begoden 125 Cassidy v. Fontham 194, 213 Castle V. Belfast Foundry Co 243 Castro V. Fry 292 Caswell V. Caswell 430 Cato V. Stewart 308 Caton V. Caton 484 Cattle V. Snyder 32 Caul V. Gibson 384 Cecil V. Mix 269 Central City Ins. Co. v. Oates 114 Cesar v. Chew 458 Chabot & West S. Bridge v. Chapin, 385 Chace v. Hinman 431 Chaddock v. Vanness. .261, 264, 269, 273 Chaffe V. Memphis, etc. R. Co. . . . 273 Chaffee v. Jones 269 Chaires v. Brady 296 Chamberlain v. Thompson 76 Chamberlin v. Brewer 396 Chambers v. Minchin 458 Chambers v. Watson 452, 466 Champion & Lathrop v. Griffith . . . 272 Champlin v. Laytin 79, 88, 91 Chancellor v. Donnell 287 Chaney v. Bryan 413 Chapeze v. Young 262 Chapin v. Chicago etc. Ry. Co ... . 349 Chapin v. Dobson, 125, 130, 148, 150, 152, 155, 164, 165, 170, 172, 173, 336, 338. Chaplin v. Baker 335 Chapman v. Allen 76 Chapman Township v. Herrold. ... ig Chapman v. Twitchell 316, 321 Chappel V. Missionary Soc 466 Charles v. Denis 263 Charlton v. Reed 25S Charter v. Charter 462 Chase v. Hamilton Ins. Co 113 Chaurand v. Angerstein 204 Chemung Canal Bank v. Judson. . . 425 Chester v. Bank of Kingston, 48, 125, 143, 402 Chesterfield v. Jameson 67 Chevalier v. Huthwaite 446 Cheriot v. Barker 75, 109 Cheyney's case 479 Chicago V. Sheldon IQ5, I96 Page. Chicopee Bank v. Eager 275 Child V. Ins. Co 226 Child V. Sun Mut. Ins. Co 213 Ghilds V. Wyman 26'g Chipman v. Tucker 279 Choate v. Burnham 305, 333 Chouteau v. Suydam ... .54, 58, 2S6, 287 Christ V. Diffenbach 74, 143 Christie v. Sullivan 80 Christopher v. Christopher 294 Chrysler y. Renois 253, 259 Churchill v. Bradley 259 Cincinnati, etc. R. Co. v. Ihff 282 Citizens' Ins. Co. v. McLaughlin . . 221 City Bank v. Adams 252 City of Bloomington v. Blooming- ton • ; 333 City, etc. Co. v. Merch. etc F. Ins. Co. "4 Clanin v. Esterly H. Co 248 Clapp V. Rice 267 Clapp V. Tirrell 291 Claremont v. Carlton 310 Clark V. Baird 327 Clark V. Bryan 416, 417, 420 Clark V. Colbert 297 Clark V. Crawfordsville Coffin Co . . 185 Clark V. Morrison 492 Clark V. Munyan 308 Clark V. Washington F. Ins. Co. .48, 137 Clark V. Wethey 326 Clarke v. Gordon 255. Clarke v. Lancaster 73, 311 Clarkson v. Han way 289, 295 Claxon V. Demaree 259. Clayton v. Bussey 83 Clayton v. Freet 80, 81, 83 Clayton v. Gregson 204, 206 Clayton v. Lord Nugent 449 Cleaver v. Traders' Ins. Co 114 Clements, V. Cassilly ^04 Clementson v. Gandy 45S Clenighan v. McFarland 150- Clever v. Kirkman 52 Cleverly v. Cleverly 458, 479. Cleves V. Willoughby 163^ 15^ Clinton v. Hope Ins. Co 22 Clothier v. Adriance 273 Clow V. Brown .^ Coapstick v. Bosworth 247 TABLE OF CASES CITED. XXIU Page. Coates V. Sangston 125 Cobb V. Ins. Co 226 Cobb V. Wallace 125, 129 Cochran v. Atchison 258 Cochran v. Retberg. 204, 205 Cock V. Taylor 306, 309 Cockburn v. Alexander 228, 232 Cockrill V. Kirkpatrick 245 Cocks V. Barker 49, 280 Coe V. Hobby 102, 103 Coger V. M'Gee 76 Coofman v. Lookout IJank 66 Coit V. Conn. Ins. Co 204, 205 Coit V. Haven 417, 419 Cole V. Gibson , 69 Cole V. Smith 268 Coleman v. Bank of Elmira 241 Coleman v. First National Bank. .23, 26 Coleman v. Manhattan B. I. Co . . . 311 Coleman v. Pike Co 40 Coleman v. Riches 355, 362 Coleman's Appeal 409 Colerick v. Hooper 309 Colgrove v. Rockwell 260 CoUagan v. Burns 489, 492, 493 CoUender v. Dinsmore 204, 224, 229 CoUett V. Morrison 107 Collins V. Blantern 61, 62, 64, 296 Collins V. Tillou 2S8, 291 Collins V. Tillou's Admrs 58, 289, 334 Collins V. Trist 269 Colpoys V, Colpoys 1 19 Colton V. Beardsley 19 Columbia v. Amos 50 Columbia Ins. Co. v. Cooper. ... 74, 112 Columbus S. P. Co. v. Causer 188 Colwell V. Lawrence 172 Combs V. Hannibal Sav. & Ins. Co. no Commercial Ins. Co. v. Spankneble, no Com'rs. V. AspinwaU 404 Com. V. Beaumarchais 245 Com. V. Blood 415 Com. V. Dana 14 Com. V. Hide & Leather Ins. Co. . . 113 Com. V. Kane 19 Com'rs V. Nichols 406 Com'rs V. Perry 384 Comstock V. Breed 44 Comstock V. Hadlyme Ec. Soc. .478, 482 Comstock V. Howd 383. 3^4 Page. Conant v. State Nat. Bank 156. Condit V. Cowdrey 40, 135 Condon v. Pearce 258 Conkling v. Davis 94. Conner v. Clark 245 Connolly v. Pardon 47&' Connor v. Stanley 71 Conrad v. Fisher 99. Cont. Ins. Co. v. Wilson 115, Converse v. Wales 493. Cook V. Brown 25g> Cook V. Combs 335 Cook V. Darling 416, 419. Cook V. Nathan 94. Cook V. Welch 216, 22r Cook V. England 22S Cook V. Husbands 81 Coon V. Knap 34S Cooper V. Farmers' M. F. Ins. Co. . 75 Cooper V. Finke 66 Cooper V. Kane 222 Coopei: v. McCrimmin 387 Cooper V. Phibbs 79, 81, gS Cooper V. Robinson 16 Cooper V. Smith 16 Copeland v. Dwelling-house Insur- ance Co , 115 Coquillard v. Hovey 18S Cowee V. Cornell 71: Corbett v. Clark 275 Corbett v. Underwood 221, 22S Corvin v. Sistrunk 55, 25r Corbleys v. Ripley 31& Cork V. Bacon 23^ Corn Ex. Bank v. Nassau Bank . . . 236- Corse V. Peck 200, 337' Costello V. Eddy 139, 150, 153, 172 Cottage St. M. Church v. Kendall, 376, 379, 380 Cottle V. Cole 416 Cotton States L. Ins. Co. v. Lester. 113 Couch V. City F. Ins. Co 1 14 Couch V. Eastham 483 Couch V. Meeker 24^ Coulson V. Allison 6^ Countess of Rutland v. Earl of Rut- land 166 County of DesMoines v. Hinkley, ^ 200, 255 Courtenay v. Fuller 99, 134 XXIV TABLE OF CASES CITED. Page. Courtright v. Courtright 83 Coventry v. Gt. Eastern R. Co 365 Cover V. Manaway 303 Cox V. Beltzhoover 239 Cox V. Bruce j 350, 355 Cox V. Hart 308 Cox V. Holcomb 303 Cox V. Thomas' Administratrix. . . . 416 Coxa V. Heisley 228, 233 Crafts V. Dexter 416 Crafts V. Hibbard 305, 333 Craig V. Town of Andes 406 Crane v. Elizabeth Library Associa- tion 126, 161, 386 Crawford v. Spencer 313 Craythorne v. Swinburne 261 Creed v. Lancaster Bank 333 Crispell v. Dubois 71 Crocker v. Getchell 265 Crocker V. People's Mut. Ins. Co.. 204 Cromwell v. Hewitt 270, 272 Cromwell v. Sac County 411 Crooks V. Whitford 461 Crosby V. Hilyer 286 Crosby v. President, etc 58 Crosby v. Wyatt 261 Cross v. Nat. F. Ins. Co 55 Crossman v. Fuller 51, 250 Crowell v. Bebee 329 Cullen V. Gary 295 Culver V. Marks 256 Cumraing v. Barber 138 Cummings v. Arnold 99 Cummings v. Kent 247, 256 Cummins v. Wire 294 Currie v. McDonald 282 Currier v. Fellows 269 Curtis V. Aaronson 320 Cutler V. Roberts 399 Cutler V. Thomas 19 .Dair v. U. S. 397, 399, 402 Dale V. Gear 264 Dale V. Pope 246 Dale V. Roosevelt 300, 301 Dale V. Smith 73, 315 Dalrymple v. Hillenbrand 260 Dan V. Brown 4S2, 487 Dane v. Vicountess Kirkwall 60 Daniel v. McRae . . . '. 261 Daniels v. Benedict 416 Page. Daiiiels v. Hudson R. F. Ins. Co . . 212 Daniels v. Smith 1° Darlington's Appeal 7° Davis V. England 247 Davis V. Fuller 310. 317 Davis V. Galloupe 228, 232 Davis V. Jones 52, 128 Davis V. McNalley 66 Davis V. Packard 424 Davis v. Randall 247, 267 Davis V. Statts 260 Davis V. Stout. , . ., 244 Davis V. Townsend 330 Davys V. Boucher 484 Day V. Me^anics', etc., Ins. Co . . loi Day V. Ramsdell 82 Day V. Thompson 267 Day V. Trigg .\ . 441 Day, ex parte 484 Dayton Ins. Co. v. Kelly 113, 114 Dean v. King 349, 356, 362 Dean v. Mason 43, 149 Dearborn v. Cross lo2 Deardorff v. Foresman 399, 402 De Camp v. Scofield 140 Decker v. Decker .'. 452, 472, 474 Deering & Co. v. Creighton 269 Deery v. Cray 310 Delaplaine v. Hitchcock 49 ' De Lavalette v. Wendt 57, 347 Delavan v. Duncan 344 Deming v. Carrington 316 Deming v. Houlton 406 De Moss v. Robinson 484, 485 Dempsey v. Kipp 40 Den V. Van Houten 305 Denfield v. Smith 464 Denison's Appeal 493 Dent V. Bennett 71 Dent V. N. A. Steamship Co 194 Denton v. English. . . ^ 62, 298 Depeyster v. Gould 289 De Rosaz, Matter of 471, 483 Deshazo v. Lewis 99 Desilver, Matter of 287 Des Moines Univ. v. Livingston . . 376 Despard v. Walbridge 48 Deupree v. Deupree 493 De Voss V. City of Richmond 406 Dewees v. Manhattan Ins. Co 112 TABLE OF CASES CITED. XXV Page. Uewltt V. Berry 148 DeWolf V. Johnson 64, loi Dexter v. Hull 287 Dexter v. Ohlander 189 Dibble V. North Ass. Co 115 Dibble v. Rogers 326 Dickenson v. Dickenson 334 Dickerson v. Seelye 362 Dickinson v. Bradford 71 Dickinson V. City of Poughkeepsie . 235 Dickinson v. Gay 228 Dickinson v. Glenny 94 Dickson v. Harris 253 Dietz V. Farrish 279 Dilleber v. Knickerb'ker L. Ins. Co. 113 Dist. of Columbia v. Gallaher 198 Ditch V. VoUhardt 346 Diven v. Johnson 167, 172 Dixon V. Olmstead 302 Dixon V. Parker 295 Doane v. Dunham 216 Dobbin v. Bradley 2i6 Dobson V. Pearce 416, 426 Dodds V. Hakes ., 417 Dodge V. Crandall 104 Dodge V. Zimmer 140, 147, 173 Doe V. Allen 479, 480, 489 Doe V. Burt 186 Doe V. Needs 481 Doe V. Oxenden 447 Doe V. Perkes 487, 482 Doe V. Roe 454, 479 Doe d. Le Chevalier v. Huthwaite . 439 Doe d. Oxenden v. Chichester 441 Dolson V. De Ganaghl 247 Domestic Appeal 463 Domestic Sewing Machine Co. v. Anderson 135 Donley v. Tindall 61, 257, 301 Dooley v. Baynes 170 Doolittle V. Blakesley 311' Doolittle V. Ferry 263, 267 Dorgan v. Weeks 310 Dorman v. Wilson 346 Doss V. Peterson 245 Doty V. Brown 409 Doty V. Martin 125 Doty V. Thompson 200 Doughty V. Doughty 416 Douglass V. Howland 431 Page. Douglass V. Wilkeson 240 Downer v. Cheesebrough 268 Downs V. Sprague 212 Downs V. Webster 244 Doyle V. Dixon 139, 164, 339 Draper v. Mass. St. Heat Co 243 Draper v. Rice 240 Draper v. Shoot 289 Drayton v. Dale 239 Drew V. Drew 305 Dringer v. Railway 416 DriscoU V. Damp 409 Dubois V. Del. , etc. , Co 28 DuBois V. Ray 463 Dudley v. Bosworth 290 Dumont v. Duf ore 302 Duncan v. Pope 282 Duncan v. U. S 398 Dunckel v. Wiles 409 Dunham v. Averill 465 Dunham v. Chatham 76, 333 Dunham v. Gannett 310 Dunlap V. Cody 413 Durant v. Ashmore 482, 483, 487 Durkin v. Cobleigh 134, 339 Dutton V. Gerrish 157, 165, 335 Dye V. Scott 247, 256 Dykers v. Allen .228, 231 Dykers v. Townsend 26 Eager v. Stover 413 East Birmingham Land Co. v. Den- nis 237 East Tenn., etc., R. Co. v. Johnston 228 Easterly v. Barber 262 Eastern R. Co. v. Benedict ,26 . Eastman v. Shaw 52, 53, 152 Eaton V. Alger 38 Eaton v. Benton 484 Eaton V. Eaton 43, 287 Eaves v. Henderson 244 Eberle v. Bonafon's Exrs 169 Edgerton v. Edgerton 417 Edinboro Acad. v. Robinson 383 Edmunds v. Rose , 260 Edrington v. Harper 295 Edwards v. Golding 23 Edwards v. Smith 333 Ehrman v. Hoskins 478 Eighmie v. Taylor, 68, 152, 165, 337, 339 Filbert v. Finkheimer 269, 273 XXVI TABLE OF CASES CITED. Page. Eldred v. Malloy 252 Elliott V. Lycoming Co. M. Ins. Co. 113 Elliott V. Peirsal 303, 420 Ellis V. Hamilton 246, 255 ,Ellis V. Higgins 300 Ellis V. Willard 57 Elmore v. Marks 279 Ely- V. Kilborn 246 Elysville Manf. Co. v. Okisko Co. . 288 Embury v. Connor 420 Emerson v. Slater 99 Emery v. Webster 309 Emmert v. Hays 454 Engelhorn v. Reitlinger 152, 337 Ennor v. Thompson 303 Enos V. Smith 420 Ensign v. Webster 346 Erskine v. Adeane, 128, 131, 143, 152, 158, 159, 160, 165; 170, 177, 339 Erwift V. Saunders 43, 246 Esterly v. Cole 222 Ethefidge v. Palin 149 Eureka Iron Works v. Bresnahan. . 430 Evans' Appeal 98 Evans v. Herring 300 Evans v. Llewellin 89 Evans v. Pratt 208 Evans v. Roe 156 Evans v. Wells 28, 32, 33, 35 Evants v. Strode 80 Ewaldt V. Farlow 137 Ewer V. Coffin 413, 419 Ewer V. Washington Ins. Co 75 Ewing V. Smith 66,' 69 Exchange Bank v. Rice 378 Exeter Bank v. Stowell 262 Fabbri v. Phcenix vins. Co 57, 227 Fairlie v. Herring 255 Falk V. Turner 71 Falkner v. Earle 216, 220 Fall V. Glover ;5i, 289 Faris v. Dunn 333 Farley v. Parker. 287 Farmers' Bank v. Duvall 275 Farmers', etc., Bank v. Champlain, etc. , Co 221 Farmers & Mech. Bank v. Day. ... 16 Farnham v. Barker 47S Farnum v. Phoenix Ins. Co 114, 115 Farr v. Nichols 147, 316 | Page. Farr v. Ricker 263. Farrar v. Hutchinson 346- Farwell v. Ensign 261 Farwell v. St. Paul Trust Co 256 Faulcon v. Johnston 18 Faulkner v. Nat. Sailors' Home . . . 468 Faunce v. State L. M. Ins. Co ... . 53 Faure v. Martin 78 Fawkes v. Lamb 220 Fear v. Dunlap 270 Fechheimer v. Fronstine 291 Feeney v. Howard 289 Fegenbush v. Lang 269 Fellows v. The Powell 355 Fenderson v. Owen 16, 309 Fenwick v. Ratliff 62 Fenwick v. Ratliife's Rep 300 Ferguson v. Crawford 418 Ferguson v. Hill 244 Ferguson v. Lowery 71 Ferris v.i Comstock 212 Fertig v. Bucher 398 Field V. Gibbs 413, 41^ Field V. Lelean 216, 22a Field V. Munson 57, 193, 200 Filkins v. Whyland 130, 136, 172 Finch V. Finch 492 Finnegan v. Thiesen 71 Firemen's Ins. Co. v. McMillen.283, 401 First Free-Will Bap. Parish, etc., v. Perham 150, 386 First Nat. Bank v. Fowler. 261 First Nat. Bank v. Fricke 257 First Nat. Bank v. Nugen 251 First Nat. Bank of Harrisburgh v. Paul 303 Fish V. Plubbard's Admrs 117 Fiske V. McGregory 125 Fitch V. Carpenter 213 Fitzpatrick v. Boston & Me. R. Co. 18 Fitzpatrick v. Fitzpatrick. . 456, 474, 476 Fitzpatrick v. Hartford L. & A. Ins. Co 115 Fitzpatrick v. School Corars. ...... . 51 Flanders v. Doyle 294 Flanders v. Fay 134 Fleet v. Murton 220 Fleming v. Gilbert 102, 255, Fletcher v. Austin 393 Fletcher v. Pierson 256 TABLE OF CASES CITED. XXVIL Page. Fletcher v. Watson 62 riinn V. Tobin 109 Flint V. Sheldon 297 Flood V. Joyner 346 Floyd V. Ricks 302 Fl)mn V. Bourneuf 293, 335, 339 Flynn v. Equit. L. Ins. Co 74 FoUette v. U. S. Mut. Ace. Assn . . 115 Folsom V. Mussey 43, 251 Foot V. Bentley 138 Foote V. Colvin 333 Ford V. James 283 Ford V. Tirrell 210 Ford V. Williams 23, 26 Forsythe v. Kimball 248 Fort V. Orndoff 252 Fort Worth Nat. Bank v. Red River Nat. Bank 51 Fortier v. Darst 276 Foster's Appeal 494 Foster v. Clifford 246, 251 Foster v. Dickerson 14 Foster v. Ma^ckinnon. . ; 52 Foster v. Newbrough 346 Foster v. Wells 409 Fondavila v. Jourgensen 150 Foust V. Board of Pub 376 Fowke V. Slaughter 333 Fowler v. JEtna. F. Ins. Co., 75, 204, 212 Fox V. Clifton 38'i Foy V. Blackstone 50, 245, 246 Frankel v. Satterfield -417 Franklin F. Ins. Co. v. Chicago Ice Co 114 Franklin F. Ins. Co. v. Martin, no, 113, 115 Franklin L. Ins. Co. v. Sefton. .228, 232 Fransen's Will 49° Frazier v. Myer 197 Freed v. Mills 142 Freeman v. Boston 379 Freeman v. Curtis 80 Freidlander v. Texas, etc., Ry. Co., 350. 355, 368 French v. Hays 309 French v. Pearce 328, 333 Frey v. Drahos 315 Frith V. Barker 228 Frost V. Blanchard 149 Frost V. Spaulding 305. 333 Page. Fuller V. Acker ' 37 Fuller V. Crittenden 346- Fuller V. McDonald 268 Fuller V. Parrish 29S Fuller V. Robinson 236- FuUerton v. Hill 269. FuUwood V. Blanding 48, 137 Fulton V. Andrew 451 Fulton V. Hanlow 411 Furbish v. Goodwin 37 Furley v. Wood 204. Fusting V. Sullivan 49, 139, 143, 174 Gaboy v. Lloyd 225 Galbraith v. Lunsford 329^ Galen v. Brown 19, 185, 188 Galena Ins. Co. v. Kupfer 204 Gallagher v. London Assur. Co. ... 15 Gallup V. Wright 462 Galpin v. Atwater I54- Galpin v. Page 41T Ganson v. Madigan 120, 192 Ganson v. Madison 185. Gardner v. Lightfoot 289. Gardner v. Watson 188 Gaunt V. Wainman 32 Gaines v. Fuentes 41& Gaines v. Relf 430' Garwood v. Garwood 433 Gatlin v. Kilpatrick 252 Gans V. St. PaulF. &M. Ins. Co.. 114 Gaylord v. City of Lafayette ig6 Gazzoway v. Moore 244- Gebb V. Rose 94. George v. Conhaim 200 George v. plarris 383 George v. Thomas 317, 332 George v. Williamson 300^ Gerard Bank, etc. v. M. L. Ins. Co. 115 German Am. Ins. Co. v. Conn. F. Ins. Co. 225 Germania Bank v. Distler 16 Germania F. Ins. Co. v. Hick 115 Germania F. Ins. Co. v. Memphis, etc. R. Co 374 Getchell v. Whitteraore 307 Getzler v. Saroni 30a Gibbes v. N. Y. L. Ins. Co 94 Gibbon v. Young 204, 216, 231 Gibson v. Crick 229 Gibson v. Gibson '. 483 XXVIU TABLE OF CASES CITED. Page. Gibson V. Miller -. 268 Gibson v. Minet .66, 240 Gibson v. Partee 283 Gibson v. Poor 3I7 Giddings V. Lee 121, 310 Gilbert v. Molina Plow Co 200 Gilbert v. N. A. t. Ins. Co. 284, 285, 287 Gilbert v. Stockman 336 Gilbert v. Wiman 431 Gilchrist v. W. Va. etc. Co 413 Giles V. Warren 489 Gill T. Morris 252 Gillespie v. Holland 71 Gillespie v. Moon 76 Gillespie v. Torrance 251 Gilliam v. Chancellor 484 Gilman v. Gilman 413 Gilman v. Veazie 388 Gilmer v. Stone 452, 454 Gilmore v. Burch 71 Girard L. Ins. Co. v. Mut. L. Ins. Co 222 Gisaf V. Neval 62, 299 Glass V. Hulbert 77 Glendale Woolen Co. v. Protection Ins. Co 75 Glover v. Robbins 246 Goblet V. Beechey 483 Goddard v. Bulow 204 Goff V. Bankston 249 Colder v. Bressler ig Goltra v. Sanasack 95 Good V. Martin 263 Goodrich v. Stevens 193, 212 Goodspeed v. Fuller. . . .44, 288, 289, 290 Goodtitle v. Otway 493 Goodtitle v. Southern 441 Goodwin v. Davenport 263 Goodwin v. Goodwin 346, 348 Gordon v. Little 204, 214 Gordon v. Niemann 151, 167, 337 Gore V. Gibson 58, 239 Gorrisen v. Perren 209 Goss v. Ellison 2 Goss v. Lord Nugent 99, 134 Gould v. Mansfield 484 Gould V. Lake 489 Gouverneur v. Elmendorf 342 Gowdy V. Gordon 334 Grace v. Adams 374 Page. Graffam v. Pierce 34° Grafton Bank v. Woodward 255 Graham v. Anderson 303 Grand Bank v. Blanchard 275 Grand Lodge v. Farnham 384 Grange v. Palmer 99 Granger v. Clark 417, 419 Grant v. Frost 137 Grant v. Grant 442, 450 Grant v. Maddox 203, 204, 208 Grant v. Norway, 350, 352, 355, 359, 360, 371, 372 Grattan v. Metrop. L. Ins. Co . . .74, 114 Gratz V. Beates 305, 333 Graver v. Scott 50 Graves v. Carter 289 Graves v. Dudley 287 Graves v. Johnson 25, 2b8 Graves v. Tucker 283 Gray v. Clark 195 Gray v. Harper 191, 195 Gray v. Hook 62 Gray v. Roberts 298 Great Falls Co. v. Worster 317, 320 Great West. Ins. Co. v. Rees 43 Green v. Batson 125-, 146, 338 Green v. Collins . . . ., 315 Green y. Godfrey 303 Green v. Milwauke, etc. R. Co . . . . 228 Green v. M. & E. R. Co 79 Green v. Morris, etc. R. Co 90 Green v. Railroad Co 83 Green v. Randall 146 Green v. Vardiman 292 Green Bay Co. v. Hewett 80 Greenfield's Estates 72 Greenough v. Smead 269 Greenstine v. Borchard 228, 236 Gregory v. Gregory 413 Gregory in re 446, 454 Griener v. Ullery 239 Grier v. Huston 346 Grierson v. Mason 56, 57, 139 GriiHth v. Reed 25 Griffith V. Townley 79, 86, 92 Griffiths V. Hardenbergh 184 Griffiths V. Robins 69 Grinnell V. West. Un. Tel. Co . .227, 230 Griscom v. Evans 476, 477 Griswold v. Haven 359, 360 TABLE OF CASES CITED. XXIX Page. Griswold v. Sawyer i8g Groat V. Gile 228, 231 Groot V. Story 153 Gross V. Drages 259 Grosvenor v. Sherratt 69 Grove v. Rentch 40 Groves v. Colp 467 Groves v. Steel 289, 293 Grubbs v. Foust 464 Grubbs V. N. C. Home Ins. Co . . . 114 Guidrat v. Mech. Bank 275 ^Guild V. Thomas 401 Gunning v. Royal 251 Gurnsey v. Mudge 94 Gwinn v. McCarroU 417, 420 Haag V. Hillmier 137 Hager v. Rice 240, 241 Hagood V. Harley 283 Hagood V. Swords. 51 Hahn v. Doolittle 125, 129, 338 Hahn v. Kelly 416, 417, 420 Haigh V. Kaye 300, 302 Haile v. Pierce 24, 241 Hair v. LaBrouse 245 Hale v. Jewell 74 Hall V. Banner 310 Hall V. Carmichael 71 Hall V. Cazenove 16 Hall V. Davis 305 Hall V. Dench 493 Hall V. Hall 94, 2go, 478 Hall V. Jarison 228, 233 Hall V. Jewell 297 Hall V. Knappenberger 72 Hall V. Mayo 320 Hall V. Newcomb 263, 272 Hall V. Parker 402 Hall V. Smith 396 Hall V. Solomon 290 Hall V. Sprigg 333 Hall V. Stephens 470 Hall V. Wilcox . ..'. 25 Hallam v. Corlett 83 Halliday v. Hart 257 Halpin v. Stone 44 Hame v. Van Orden 44 Hamilton v. Cawood 314 Hamilton v. McGuire 288 Hamilton v. Smith 71 Hammond v. Woodman 289 Page. Hampshire v. Peirce 479 Hampton v. McConnel 422 Haman v. Oxley 288 Hannum v. Richardson 258 Harbison v. Lemon 287, 288 Hard v. Shipman 424 Harding v. Alden 413 Harding v. Coburn 312 Hards v. Platte Valley Impr. Co. . . 384 Hardy v. Pilcher 240 Hardy v. Warren 461 Hargrave v. Melbourne 280 Hargroves v. Redd 492 Harkreader v. 'Clayton 287, 299 Harmon v. Hale 260 Harn v. Smith 332 Harnickell v. N. Y. L. Ins. Co 144 Harnor v. Groves 149, 164 Harper v. City Ins. Co 221 Harper v. Dail 346 Harper v. Pound 232 Harper v. State 398 Harring v. Allen 492 Harrington v. People '. . . . 424 Harrington v. Samples 45 Harris v. Alcock 252 Harris v. Barnett 334 Harris V. Bishop of Lincoln 479 Harris v. Columbiana Ins. Co 75 Harris v. Doe 307 Harris v. Hardeman 421 Harris v. Harris 494 Harris v. Oakley 332 Harris V. Rathbun 212 Harris v. Rickett 128 Harris v. Tumbridge 224 Harrison v. Castner 288 Harrisonv. Laverty 289 Harrison v. McCormick 154 Harshey v. Blackmar 417 Hart V. Hammett 191 Hartley v. Corboy ' 258 Hartley v. Frost 303 Hartlay v. Tatham 294 Hartley's Lessee v. McAnultv 288 Hartsell v. Myers 16- Hart V. Rector 74 Hartwell v. Camman 16, 311, 315 Hatty V. Ladd 303 Harvey v. Alexander 288 XXX TABLE OF CASES CITED. Page. Harvey v. Ledbetter 333 Harvey v. Million 125 Harvey v. Mount 69 Haskins v. Lombard 398 Hass V. Plantz 332 Hassam v. Barrett 295 Hastings v. Pepper 349 Hastings v. Stark 305, 333 Hatch v. Douglass 16, 204 Hatch V. Hyde 246 Hatcher v. Rocheleau 426 Haven v. Brown 309 Havens v. Home Ins. Co 114 Hawkes v. Pike 279 Hawkins v. Garlands' Admr 456 Hayden v. Mentzer 290 • Haydock v. Haydock 70 Haydon v. Ewing's Devisees , 479 Hayes v. Peck 44 Hays V. Hays 303 Hayton v. Irwin 228, 237 Hayward v. Nat. Ins. Co 114 Hazard v. Loring 58 Hazard v. White 256 Hazzard y. Duke 264 Healy v. Young 146 Heald v. Cooper 210 Heath v. Williams 295 Heavenridge v. Mondy. 94 Hebbard v. Haughian 289 Hector v. Glasgow 303 Hedges v. Bowen 200 Heffield V. Meadows 188 Heffner v. Brownell 82 Heffron v. Cunningham 335 Heffron v. Pollard 24, 59 Hei v. Heller 126, 161 Heist V. Hart 255 Helms V. Wayne Co. Ag. Co 258 Hemmingway v. Coleman 72 Henderson v. Hackney 21, 312 Henderson v. Palmer 62, 251 Henry v. Henry 348 Herdmanr v. Bratten 2S3 Herrick v. Carman 269 Herring v. Boston Iron Co. , 116 Herring v. Skaags 226 Herryford v. Davis 4° Hersom v. Henderson 125, 130 Heth V. Wooldridge 102 Page. Heywood v. Perrin 245, 255 Heyworth v. Hutchinson 132 Hickey v. Stewart 420 Hicks v. Goode 280 Plicks V. Morris 346 Higgins V. Moore 226 Higgins V. Senior 22, 23, 26, 29 Higginson v. Dall 109 Hildredth v. O'Brien 346 Hill V. Crook 450 Hill V. Ely 268 Hill V. Felton -.456, 565 Hill V. Freeman 62, 297, 409 Hill V. Hibernia Ins. Co 234 Hill V. Ins. Co 226 Hill V. Priestly 199 Hill V. Shields ; . . . 267 Hill V. Syracuse, etc. R. Co 374 Hinckley v. Thatcher 470 Ilinton V. Locke 204, 208 Hiscocks V. Hiscocks 442 Iloag V. Ovlfen 55 Hoar V. Goulding 310 Hodges V. Heal 293 Plodges V, Tennessee, etc. Ins. Co. 295 Hodgson V. Davis , 220 Hodgson V. Hodgson 440 Hoffman v. Hoffman 413, 414, 419 Hogell V. Lindell 295 Hoge V. Lansing 262 Hogins V. Plimpton 185 Holbrookv. Holbrook 288 Holbrook v. N. J. Zinc Co 370 Holder v. Nunnelly 333 Holland v. Barnes 239 HoUen v. Davis 244 Hollida v. Shoop 333 Hollingsworth v. Barbour 420 HoUoway v. Clarke 493 HoUoway v. Frick 100 Holman v. Johnson '. 63 Holmes' Appeal 44, 289 Holmes v. Charlestown M. Ins. Co. 75, 185 Holmes v. Doa^e 134 Holmes v. Matthews 295 Holmes v. Simons 74 Holt V. Moore 246 Holton V. Meighen 295 Horaan v. Steele 376 TABLE OF CASES CITED. Page. Hood V. Hallenbeck 244 Hooper V. Chicago R. Co 223 Hooten v. Comerford 316 Hope V. Balen 101, 135, 141, 177 Hope V. Smith 177 Hopliins V. Ins. Co 259 Hopkins v. Lee 411 .' Hopkins v. Upshur 384 Horn V. Keteltas 295 Horner V. Doe 416, 417, 420 Horner v. Stillwell 332 Horstman v. Gerker 278 Hosmer v. McDonald 198 Hostetter v. Alexander 276 Hotchkiss V. Barnes 185 Hotchkiss V. Mosher ..13, 151, 346, 347 Houck V. Graham 262, 267 Hough V. City F. Ins. Co 74 Houghton V. First Nat. Bank 241 Houghton V. Ins. Co 204 Hourtienne v. Schnoor 303 House V. Vinton Nat. Bank 256 Houser v. Lament 295 Houston V. Blackman 294 Houston V. Bruner 264 Houston V. Bryan 311 Howard v. American, etc 463 Howard v. Brown 485 Howard v. Horton 348 Howard v. Stratton 250 Howard v. Thomas 163, 167 Howard v. WilUams 379 Howe V. Hardy 216, 222 Howe V. Merrill 264 Howell V. Barden 483 Howell V. Knickerbocker L. Ins. Co 113 Howell V. Moores 289 Howell V. Sevier 260 Howes V. Barker ,. 73 Howland v. Blake ; 76 Hcwiand v. Marden 76 Howley v. Whipple 14 Hubbard v. Greeley 284 Hubbard v. Gurney 25, 260 Hubbard V. Marshall 2, 125^338 Hubbell V. McCuUoch 328 Hubbersty v. Ward 35°, 355. 3^2 Hubbert v. Borden 26 Hudson V, Ede 220 XXXI Page. Hudson V. Ishell , 295 Hudson V. Revett 280 Iluey's Appeal 300 Hugg V. Shank 215 Hughes V. Edwards 47 Hughes V. Stanley 216, 220 Huguenin v. Baseley 70 Hull V. Hull 413 Hultz V. Wright 143 Humphrey v. Dale 216 Ilumphreysville Copper Co. v. Ver- mont Copper Mining Co 210 Hunnicutt v. Peyton 321 Hunt V. Ilort 483 Hunt V. Ry. Co 349, 355 Hunt V. Rousmaniere, 79, 83, 84, 85, 89, 92 Hunt V. U. S 24 Hunter v. McHose 168 Huntington v. Knox 23, 26, 28 Huntley v. Whittier 18 H;ird v Bovee 187 Hurd V. Hall 97 Ilurfonl V. Ilarned 295 Hum's Lessee v. Soper 294 Hurst V. Beach '. 18 Ilussman v. Wilke 40 Huston V. Young , . 238 Hutchins v. Hibbard 44, 59 Hutchins v. Hutchins 170, 337 Hutchinson v. Tatham 220 Hutton V. Maines 156 Hyler v. Nolan 261 Hypes V. Griffin 240 Illinois M. F. Ins. Co. v. Archdea- con 114, 115 Imperial Fire Ins. Co. v. Dunham . 115 Imperial Loan Co. v. Stone 59 IngersoU v. Martin '251 IngersoU v. Truebody ; . . . 339 Inglebright v. Hammond 185 Inhab. of Reading v. Inhab. of Weston 74 Inhab. of Worcester v. Eaton . . .296, 298 In re Universal Non-Tariff F. Ins. Co 107 Insurance Co. v. Eggleston 113 Insurance Co. v. Lyons no Insurance Co. v. Mowry 113, 156 Insurance Co. v. Wilkinson 107 xxxu TABLE OF CASES CITED. Page. Ins. Co. V. Williams 74 Ins. Co. V. Wright 228, 232 Irby V. Wilson 4^4 Irick V. Fulton's Exrs 79. 8 7 Irish V. Railroad Co 221 Irvine v. Adams 260 Irwin V. Thompson 59. 34^ Iser V. Cohen 273 Ives V. Bosley 273 Ives V. Sterling 379 Izard V. Middleton 484 Jackson v. Andrews 77 Jackson v. Ashton 72 Jackson v. Betts 482, 487 Jackson v. Bowen 73. 322 Jackson v. Catlin 2S3 Jackson v. CuUum 433 Jackson v. DiefiFendorf 323 Jackson v. Douglas 323 Jackson v. Dysling 322, 329 Jackson v. Foster 313 Jackson v. Freer 324 Jackson v. Gager 329 Jackson v. Gardner '. 324 Jackson v. Hart 313 Jackson v. King 66, 287 Jackson v. Kniffen 482 Jackson v. Lodge 295 Jackson v. McCall 316, 324 Jackson v. McConnell 328 Jackson v. Miller 25 Jackson v. Mott 138 Jackson v. Ogden 323 Jackson v. Payne 168 Jackson v. Perrine , . .305, 333 Jackson v. Sill 239, 445 Jackson v. Smith 324 Jackson v. Stackhouse 374 Jackson v. Van Corlaer 324 Jackson v. Vedder 323 Jackson v. Wilkinson 446 Jacobs v. Benson 239 Jacobs V. Jacox 71 James v. Cutler 83 James v. Vanderhuyden 286 Jamesville Cotton Mills v. Ford 197 Jarvis v. Wilson 255, 275 Jeffery v. Walton 125, 129, 130, 152 Jamison v. Insurance Co 83 Jenkins v. Bass 239, 261 Page. Jenkins v. Quincy M. F. Ins. Co. 107, 112 Jennings v. Chenango Co. M. Ins. Co 75, 107. 109. "2 Jennings v. Thomas 270' Jessel V. Bath 355 Jewell V. Harrington 32- Jox V. McKeevin 170' Johns V. Church 51 Johnson v. Baker 282, Johnson v. Blackman 34 Johnson v. Carpenter 276' Johnson v. Conklin 239. Johnson v. Crawfordsville, etc. R. Co 38S Johnson v. DePeyster 21& Johnson v. Martinus 261 Johnson v. Oppenheim, 131, 152, 170, 177 Johnson v. Otterbein Univ 383 Johnson v. Pensacola, etc. R. Co . . 388 Johnson v. Ramsey 267 Johnson v. Raylton 221 Johnson v. Sherman 295 Johnson v. Smith 295 Johnson v. Walter 335 Johnson v. Waters 416- Johnson's Exrs. v. Clark 48 Johnson's Will 489, 493 Johnston v. Bank 22S Johnston v. Patterson 125 Johnston v. Usborne 217, 229 Johnston v. Wabash College 383 Johnston v. Wallace 304 Jolifle v. Madison M. Ins. Co 113 Jolly V. Young 204 Jones V. Bangs 258 Jones V. Clifford 80 Jones V. Dove 458 Jones V. Goodwin 273 Jones V. Hardesty 59 Jones V. Hoey 221, 228 Jones V. Jones 288 Jones V. Littledale 29 Jones V. Mason 484 Jones V. Pac. etc. R. Co 245 Jones V. Pashby 332, 333 Jones V. Shaw 246 Jonesville Cotton Mills v. Ford 16 Jordan v. Jordan 262 Jordan v. White 146 TABLE OF CASES CITED. xxxm Page. Jordans v. Meredith 237 Jourdan v. Jourdan 303 Journu V. Bourdien 204 Joyjies V. Statham 2g5 Judd V. Anderson 124 Judkins v. Arion M. Ins. Co 413 Judson V. Dada 294 Judy V. Gilbert 476 Juillard v. Chaffee, 52, 53, 57, 99, 125, 140, 152 Juzan V. Toulmin 66 Kain v. Old 149, 164 Kalamazoo Works v. Macalister . . . 125 Kane v. Cortesy 106 Kane County v. Herrington 333 Katz V. Bedford 125, 139 Kealing v. V?insickle 269 Kearnes v. Montgomery 271 Keating v. Price 99, loi Keen v. Davis 242 Keen v. Keen 489 Keil V. Charmer - 483 Keisselbrack v. Livingston. ..;.... 76 Keith V. Globe Ins. Co 76, no Kelly V. McGrath 71 Kelly V. Miles 105 Kelly V. Troy Ins. Co no Kemper v. Kemper 300 Kennard v. George 83 Kennebec Co. v. Augusta Ins. Co . loi •Kennedy v. Lubold 305, 333 ■ Kennedy v. McKay 22 Kennedy v. St. Lawrence M. Ins. Co 75.107 Kent V. Agard 295 Kentucky, etc. Co. v. Cleveland, 141. 375 Kern v. Von Phul 256 Kernochan v. N. Y. Bowery F. Ins. Co 135 Kerr v. Calvitt 73 Kerr v. Hays 409 Kerr v. Kerr 413. 419. 42i Kerrv. Russell 303, 304 Ketcham v. Brazil 195 Kickland v. Menasha W. W. Co. 289, 293 Kulenkamp v. Groff 248, 268 Kidner v. Keith 279 Kiersted v. Orange, etc. R. Co 25 Page. Kilmer v. Smith 66, 78, 94 Kilvert's Trusts 462 Kimball v. Brawner 310 Kimball v. Myers 50, 293 Kimm v. Weippert 253 King V. Baldwin 25 King V. Chase 412 King V. Doolittle 79, 89, 90 King V. Scammonden 39 King V. Smith 394 King V. Summitt 255 King V. Woodbridge 55, 374 Kingsbury v. Moses 339. Kingsford v. Hood 313 Kinney v. Farnsworth 317 Kinney v. Flynn 22, 240 Kip V. Norton 326, 328, 332 Kirchner v. Venus 227 Kirk V. Eddowes 484 Kirkpatrick v. Brown 311 Kitchen v. Hartford F. Ins. Co . . . 114 Klein v. Russell 18 KUnck v. Price 295 Kline v. Kline 71 Knight V. Jones 239 Knight V. Knotts 125 Knight V. N. E. Worsted Co i8r Knobloch v. Foglesong ^63 Kocourek v. Marak 303, 304 Koehring v. Muemminghoff 245 Kreigh v. Sherman 62 Krider v. Lafferty 34 Krider v. Milner 332 Krouskop V. Shontz 255 Kruger v. West F. & M. Ins. Co. . 115 Kurtz V. Hibner, 455, 456, 457, 471, 472, 476. 485 Kyle V. Kavanagh 77 Lacy V. Lofton 261 Lafayette Co. M. Corp. v. Ryland, 383, 384 Laflin, etc. Co. v. Sinsheimer.. .240, 241 Lake Shore, etc. Co. v. Foster.. 350, 366 Lamb v. Crafts 149 Lambert v. Lambert 69. Lamson V. Moffatt 49 Lancaster Co. Bank v. Moore 239 Lancaster Mills v. Merchants' Co. . 189 Landman v. Ingram 339 Lane v. Krekle 239 XXXIV TABLE OF CASES CITED. rage. Lane v. Steward 256 Lane v. Union Nat. Bank 204 Langdon v. Astor 484 Langdon v. Langdon 349 Langenberger v. Kroeger 245 Langham v. Sanford 479, 480 Langton v. Horton 295 Lanman v. Crooker 306 Lanning v. Carpenter 91 Lansdown v. Lansdown 79 Larkins v. Biddle 80 Larrabee v. Fairbanks 252 Larrow v. Lewis 237 Lasher v. Williamson 43 Latham v. Edgerton 424 Lathrop v. Bramhall 59 Lathrop v. Knapp 383 Lattemore v. Harsen 103, 134 Laub V. Paine 258 Lawrence v. Beaubien 80 Lawrence v. Gallagher 135 Lawrence v. Taylor 28 Lawrence v. Tucker 48 ' Lawson v. Morrison 492 Lawton v. Sager 284 Lawyer v. Smith 4S9, 492, 493 Lazare v. Jacques 62 Leach v. Hale 17 Leach v. Leach 71 Lear v. Yarnel 64 Lebanon M. Ins. Co. v. Hoover. . . 114 Xee V. Adsit 31 Lee V. Clark 433 Lee V. Dick 216 Lee V. Howard Fire Ins. Co 107 Lee V. Pain 449, 483 Lee V. Percival 81 Lee V. Lan. etc. Ry. Co 346 Le Fevre v. Le Fevre 99, 102, 467 Lego V. Medley 309, 311 Leland v. Cameron 433 Leland v. Stone 294 Leonard v. Clough 335 Leppoc V. Nat. Un. Bank. . . .53, 58, 279 Lerned v. Wannemacher 23 Leslie v. Knickerbocker L. Ins. Co. 113 Lessee of Pillsbury v. Dugan's Admrs 312 Levy V. Peabody Ins. Co it4 Lewis V. Commissioners 408 Page. Lewis V. Gollner 345 Lewis V. Gray 251 Lewis V. Harvey 272 Lewis V. Seabury 137, 141, 172, 176 Lewis and Nelson's Appeal 412 Lickbarrow v. Mason 352, 364 Liebscher v. Kraus 240, 242 Lilienthal v. Suffolk Brewing Co. 156, 157 Liljengren Furniture Co loi Lillis V. Emigrant Ditch Co 409 Lilly V. Smales 222 Lindgren v. Lindgren ■ 475 Lindley v. Lacey, 126, 128, 130, 143, 152, 158, 160, 161, 163 Lingenfelter v. Ritchey 333 Linney v. Wood 305 Linsley v. Lovely 138, 212, 288 Lippincott v. La. F. Ins. Co 76 Little V. Phoenix Ins. Co 115 Littler v. Holland 102 Littlewood v. Davis 295 Livesey v. Hotel Co 384 Livingston v. Rogers 377 Livingston v. Ten Broeck ..'.,. .305, 315 Lloyd v. Clark 69 Lloyd v. Farrell 335 Lloyd V. Inglis 334 Lockrow V. Horgan 150 Logue's Appeal 295 Lohman v. Crouch 245 Long V. Colton 320. Long V. Millerton Iron Co 337 Longhurst v. Star Ins. Co 79, go Loring v. Boston 379 Low V. Treadwell 240, 246 La. Nat. Bank v. Laveille 350 Louisville, etc. R. Co. v. Neafus . . 290 Love V. Buckner 301 Lovejoy v. Lovett 195 Loveland v. Burke 221 Lovett v. Adams 393 Lowe v. Lehman '. . . . .211, 221 Lowe Bros. v. Young 346 Lowell V. Middlesex Ins. Co 112 Lowell M. Co. v. Safeguard F. Ins. Co 40 Lowry v. Adams. 181 Lucas V. Bristow 210 Lucier v. Pierce ig Ludeke v. Sutherland 292, 338 TABLE OF CASES CITED. XXXV Page. Lugg V. Lugg 493 Lycoming F. Ins. Co. v. Jackson. . 74 Lyles V. Lescher 196 Lynch v. Hunneke 177 Lyon V. Home 69 McAfferty v. Hale 17 McAllister v. Tate 464 McAnear v. Epperson 417 McCall V. Phoenix Ins. Co 74 McCallum v. Jobe 261 McCampbell v. Durst 289 McCandless v. Canning Co 82 McCaulay v. Gordon 257 McCauIey v. Keller 99 McCausland v. Fleming 317 McClanahan v. Henderson 288 McClane v. White 295 McClellan v. Reynolds 241 McCloskey v. Ind. etc. Union 262 . McClure v. Wilson 384 McConnell v. Brayner 289 McCord V. Teleg. Co 357 McCormick v. Barnum 326 McCormick v. Bay City 398, 399 McCormick v. Cheevers 338, 339 McCormick v. Huse 2 McCormick v. Miller 66 McCorry v. King's heirs 449 McCrea v. Purmort 44, 47, 288, 290 McCreery v. Day 103, 106 McCuUough V. Wainwright 239 McDonald v. Drew 413 McDonald'v. Gray 384 McDonald V. Longbottom .186, 192, 195 McDonald v. McLeod 296 McDonald v. Mining Co. 411 McDuffie V. Clark 312 McElderry v. Shipley 334 McEwan v. Zimmer 413 M'Fadden v. Kingsbury 18 McFarland v. Kittaning Ins. Co. . . 113 McFarland v. Sikes 249 McFarlane v. Moore 135 McGinity v. McGinity 333 McGrath v. Barnes 255 M'Guire v. M'Gowan 333 Macher v. Foundling Hospital .... 102 Mcintosh V. Lytle 240 Mackall v. Mackall 71 McKay v. N. Y. etc. R. Co 222 Page. McKay v. Simpson 80 McKelway v. Armour 76 MacKenzie v. Dunlop 204 Mackenzie v. Harrison 103, 104 McKenzie v. McKenzie 80 McKenzie v. Wimberly 185 McKim V. Aulbach 22, 228 McKinney v. Harter 239 McKinster v. Babcock 47, 49, 288 Macknet v. Macknet 98 McKulsky v. Klosterman 215 McLean v. Fleming 350, 355 McLean v. Nicol 158, 167 MacLeod v. Skiles 2, 293, 335 McMaster v. Ins. Co. of N. A 39 McMaster v. President, etc 57 McMillan v. Paper Co 80 McNair v. Toler 116 McNaughton v. Partridge 80, 85 McNeil V. Dixon 314 McPherson v. Cox 220 McVean v. Squires 155 McWhirt v. McGee . j 264 Macy V. Whaling Co 204 Madan v. Sherard 55, 374 Mad. etc. Co. v. Stevens 283 Magie v. Hermon 14 Maguire v. Baker 310 Maguire v. Maguire 413 Maher v. Hibernia Ins. Co. . .91, 92, 107 Makepeace v. Harvard College. . . . 254 Malleable Iron Works v. Phoenix Ins. Co 74, 107 Mallory v. Leach 66 Malone v. Dougherty 99, 134 Malone v. Roy 295 Malpas v. London, etc. Ry. Co. 140, 373. 374 Maltz v. Fletcher 251 Manchester Paper Co. v. Moore ... 1 89 Mand v. Trail 221, 222 Mandeville v. Reynolds 433 Maneely v. M'Gee 253 Manhattan Ins. Co. v. Webster ... 74 Manhattan F. Ins. Co. v. Weill . . . 115 Mann v. Eckford's Exrs 61 Mann v. Mann 447, 454 Mann v. Mann's Exrs 469 Mann v. Nunn, 131, 132, 150, 158, 159, 160 XXXVl TABLE OF CASES CITED. Page. Mann v. Pearson 78 Manning v. Maroney 15 Manning v. Pippen 293 Manrix v. Purcell 354 Mansfield v. Edwards 25 Mansfield R. Co. v. Veeder ....... 16 Manuf. etc. Bk. v. Hazard 360 Manuf. Co. v. Wire Co 40 March v. McNair 91 Marine Bank v. Smith 275 Maris v. lies 340 , Marks v. Cass Co. Mill Co 228, 232 Marksbury v. Taylor 62, 299 Marrett v. Bracket! 227 Marsh v. Fulton Co 405 Marsh v. McNair 2, 45, 153 Marshall v. Holmes 416 Marshall v. Perry. 235 Marshall Co. v. Iowa, etc. Synod. . 335 Martin v. Atkinson 317 Martin v. Clarke 61 Martin v. Cole 247, 263, 265 Martin v. Hamlin 292, 335 Martin v. Smith 241 Martin v. Stubbings 252 Martin's Exrs. v. Lewis' Exrs 246 Martineau v. McCoUum 294 Marx V. Fore 413 Marx V. McGIynn 4S2 Maryland F. Ins. Co. v. Gusdorf . . 114 Mason v. Buchanan 44 Mason v. Bull 433 Mason v. Mason 247 Mason v. Skurray 204 Massey v. Bldg. Assn 239 Mast V. Pearce 14S Masters v. Masters 448 Mastin v. Gray 417, 428 Mathis V. Morgan 402 Matthews v. Baxter 58 Matthews v. Sheehan 48 Maund's Admrs. v. M'Phail 479 May V. Buckeye M. Ins. Co no Mayer v. M. L. Ins. Co 114 May's Heirs v. May's Admrs 484 Mead v. Parker 18 Means v. Swormstedt 240 Mech. Bank v. Bank 261 Mechanics' Bank v. Bank of Colum- bia 243 Page. Meeker v. Meeker 290 Megginson v. Harper 239 Merriord v. U. S 186 Meldrum v. Snow 222 Mellish V. Robertson 94 Mendenhall v. Steckel 78 Menk v. Home Ins. Co 115 Mercer Co. v. Hubbard 408 Mercer, etc. Co. v. McKee's Admrs 204 Meriam v. Harsen 289 Merick v. McNally 210 Merriam v. Pine City L. Co 2 Merrick v. Merrick 451, 457 Merrill v. Morton 450 Merritt v. Yates 303 Metcalf V. Weld 237 Methodist Churches of N. Y. v. Bar- ker 431 Mut. Ben. L. Ins. Co. v. Ruse. .115, 222 Met. EI. Ry. Co. v. Manhattan Ry. Co 430 Meyer v. Casey 43 Meyer v. Dresser 355 Meyer v. Hibscher 273 Meyer v. Knickerbocker L. Ins. Co. 114 Meyer v. Lathrop 76, 92 Meyer v. Peck 349 Middleton v. Perry 307 Miles V. Barrows 306, 315 Milks V. Rich 255 Mill-Dam Corp. v. Ropes 385 Millard v. Barton 259 Miller v. Burke , . 16 Miller v. Ewing 420 Miller v. FichtKorn 338 Miller v. Finley 2S7 Miller v. Fletcher 280, 402 Miller v. Gamble 249 Miller v. McICenzie 252 Miller v. Phillips 492 Miller v. Roach 243 Miller v. Stevens 204, 210 Miller v. Stokeley 334 Miller v. Thatcher 333 Miller v. Travers 441, 442, 453 Miller v. Wentworth 304 Millett V. Parker 396, 398, 402 Mills V. Bank 275 Mills V. Duryee 422 TABLE OF CASES CITED. XXXVll Page. Mills V. Martin 424 Mills V. Rice 297 Mills Co. Nat. Bank v. Perry 255 Milwaukee, etc., R. Co. v. Milwau- kee, etc., R. Co 312 Miner v. Phoenix Co 1 14 Miner v. Robinson 261 Mitchell V. Ferris 413 Mitchell V. Henry 214 Mitchell V. Kingman 58 Mitchell V. U. S. Express Co 346 Moffitt V. Bulson 296 MofEt V. Wilson 253 Moliere v. Penn. F. Ins. Co 74 Molton V. Camroux 60 Monne v. Ayer 92 Monro v. Taylor 52 Montgomery v. Crossthwait 260 Montgomery v. Hobson 303 Montgomery v. Scott 66 Moody V. Hamilton 17, 287 Mooney v. Howard Ins. Co 210 Moore v. Adams 297, 302 Moore v. Cross 273, 274 Moore v. Pierson 66 Moore v. Prentiss Tool Co 43, 153 Moore v. Vick 76 Moore v. Wade 295 Moore v. Waitt 275 Moorman v. Collins 95 Moran v. Prather 237 Moreland v. Brady 451 Morgan v. Burrows 456, 479, 480 Morgaij V. Butterfield 99 Morgan v. Griffith, 131, 143, 152, 158, 159, 160, 165, 170, 177, 339 Morgan v. Morgan 440 Morgan v. Porter 166 Morgan's Assignees v. Shinn 48 Moritz V. Brough 483 Morningstar v. Cunningham 212 Morrell v. Morrell 417, 450, 479 Morris' Appeal 200 Morris v. Budlong 295 Morris v. Faurot 247, 260 Morrison v. Davis 373 Morrissey v. Schindler 99 Morse v. Shattuck 300 Morss V. Salisbury 199 Morton v. Jackson 309 Page. Moses V. Hatfield 51, 293 Mosley v. Massey 439 Moss V. Green 167 Moss V. Riddle 283 Mott V. Hurd 292 Mott V. Palmer 316 Motteux V. St. Aubin 260 Moulton V. Libbey 412 Moxon V. Atkins 205 Mulford V. MuUer 48 MuUain v. Thomas 148 Mulligan v. 111. Cent. R. Co 374 Muraford v. Gething 186, 192 Mumford v. Memphis & Charleston Co 389 Munger v. Baldridge 302 Munroe v. Perkins 134 Murdock v. Cox 289 Murdock v. Gilchrist 289, 341 Murray v. Earl of Stair 53 Musser v. Johnson 22 Myers v. Cronk 484 Myers v. Hazzard 276 Myers v. Meinrath 298 Myers v. Sari 203, 204 Myers v. Walker 213 Nally V. Long 149 Nash V. Towne 29, 30, 186 Nat. Bank v. Burkhardt 228 National Bank v. Chicago, etc. , R. Co 354 Nat. Car, etc., Co. v. Cyclone, etc., Co 40 Nat. Cash Register Co. v. Blumen- thal 155 Nat. City Bank v. Westcott 240 Naumberg v. Young, 126, 133, 158, 167, 339 Nedvidek v. Meyer 288 Needham v. Thayer 430 Needles v. Burk 80 Neil V. Case 16 Neill V. Keese 333 Nelson v. Oldfield 483 Nelson v. Sun Mut. Ins. Co 204 New Berlin v. Norwich 32, 39 Newburgh v. Newburgh 442, 458 Newcomb v. Drummond 433 Newcomer v. Kline 76, Il6 Newell V Radford 22 xxxvin TABLE OF CASES CITED. Page. Newhall v. Appleton 214 Newport, etc., Co. v. Starbird 21, 239 N. Y., etc., R. Co. v. Schuyler, 359. 370, 372 New York Cent., etc., R. Co. v. Standard Oil Co 221 N. Y., etc'R. Co. V. Winter's Adrars igo New York Co. M. F. Ins. Co. v. Brooks 402 New York Ex. Co. v. De Wolf 385 N. Y. L. Ins. Co. v. Aitkin 313 Nichol V. Lytle's Lessee 332 Nichols V. Burch 292 • Nichols V. Cabe 295 Nicholson v. Combs 257 Nickerson v. Saunders 143 NicoU V. Burke 23, loi Nieman v. Ward 317 Nilson V. Morse 198 Nissen v. Genesee Gold Min. Co. . . 125 Nixon V. Porter 317 Noble's Admr. v. Moses 71 Noe V. Hodges 245 Noel V. Murray 253 Norman v. Morrell 15 Norris v. Clark 193, 200 Norris v. Sheppard 483 North V. Barrett 223 North Am. F. Ins. Co. v. Throop, 2, 74, no, 113 N. E. F. & M. Ins. Co. v. Schettler 74 Northrop v. Speary 292 North w. Distilling Co. v. Brant. . . 25 Northwestern L. Ins. Co. v. Amer- man 115 Norton v. Coons 261, 262 Norton v. Janvier 384 Norton v. Marden 76 Norton v. Relly 69, 71 Norton v. Woodruff 191, 199 Nowlin V. Pyne 83 Noyes v. Butter 413, 421, 424 Noyes v. Canfield 182 Nurney v. Firemen's Fund Ins. Co. 115 Nutt V. Humphrey 23 Nys V. Biemeret 317 O'Brien v. Gilchrist 346, 349 Ockington v. Law 245 Odiorne v. N. E. etc., Ins. Co . .228, 229 Page. O'Donohue v. Leggett 234, 235 Oelricks v. Ford 219, 236 O'Farel v. Harney 31a O'Harra v. Hall 149 O'Hear v. DeGoesbriand 387 Old Colony R. Corp. v. Evans. . . .'. 314 Oldham v. Broom 261, 262 Olds V. Cummings , 276 Oliver v. Ins. Co 80 Oliver v. Oliver 289 O'Neale v. Lodge 288 Oneale v. Long 398 Opdyke v. Stephens 305 Oreg. Steamship Co. v. Otis 18 Ormsbee v. Howe 259 Orphan Asylum v. Emmons, 454, 457, 458 Orrick v. Colston 271 Osborne v. Taylor 246 Osgood V. Davis 149 Oshkosh Gaslight Co. v. Germania Fire Ins. Co 113 Ottawa, etc., R. Co. v. Hall 52 Ousby v. Jones 308 Oyerseers v. Overseers '. 33 Owings v. Baker | 269 Ownigs' Case 66, 287 Owsley V. Philips 258 Oxnard v. Varnum 256 Page V. Cole 16, 213 Page V. Home 69 Page, Matter ot 494 Page V. Monks 339 Paige V. Carter 16 Pain V. Packard 25 Paine v. Aldrich 287 Paine v. Ringold 255 Paine v. Smith 218, 232, 275 Paine v. Upton 76, 78 Palmer v. Albee 119, 200 Palmer v. Farrell 309 Palmer v. Fogg 99 Panton v. Tefft n6 Pardee v. Fish 151 Parfitt v. Lawless yr Parker v. Albee 415 Parker v. Foy 289 Parker v. Ibbetson 220 Parker v. Jenks 294 Parker v. Parker 84 TABLE OF CASES CITED. XXXIX PaRe. Parker v. Parmele 6i Parker v. Sutton 267 Parker v. Thompson 409 Parkhurst v. Higgins 44 Parks V. General Assur. Co tog Parmlee v. Sloan . . . . , 333 Parry v. Walser 433 Parsons v, Hosmer 76 Partridge v Ins. Co 16 Pascault V Cochran 16 Patch V. White 453, 454, 457, 469 Pate V. French 198 Patten v. Merch. & Farmers' Fire Insurance Co 74, 112 Patterson v. Hickey 489, 492 Patton V. Gilmer 62 Paul V. Owings 141 Paul V. Rider 25 Pawling V. U. S 393, 397 Paxton V. Courtnay 229 Paxton V Popham 61, 62 Paysant v. Ware 259 Payson v. Lamson 244, 346 Peabody v. Eement 187 Pearce v. Brooks 64 Pearce v. Olney 416 Pease v. Hirst 25 Peaslee v. Robbins 239 Pechner v. Phoenix Ins, Co ... . ,102, 114 Peck V Doran & Wright Co 62 Peck V. Vandenberg 289 Peckham v. Gilman 269 Peed V. McKie 62, 296 Peirson v. Hooker 374 Peisch V. Dickson 118, 184, 204 Pendleton v. Weed 426 Pennoyer v. Neff 413 Penny v. Graves 246 Penn. Ins. Co. v. Bowman 115 Penobscot R. Co. v. Weeks.. 416, 417, 420 People V. Bostwick 393, 398, 401 ^ People V. Cassels . , 424 People V. Dawell 414, 415 People V. Jansen 24 People V. Univ. L. Ins. Co 250 Pepper v. State 395, 397, 399, 402 Perkins v. Barstow . . . » 269 Perkins v. Catlin 268, 272 Perkins v. Jordan 216 Page. Perriue v. Cheeseman 99 Perrine v. Cooley's Exrs 59, 13& Perry v. Hunter 452 Perry v. Patterson 394. Perry v. Smith 16 Perry v. Thompson 228 Peters v. Porter 460 Peterson v. Chicago, etc., R. Co . . . 125 Peterson vr Johnson 250 Petrie v. Phoenix Ins. Co 212 Pettit V. Shepard 311, 316 Petty V. Christ Church 383 Peugh V. Davis 44, 295 Phelps V. Decker 302 Phelps V. Holker 41? Phelps v. Seeley 99 Phelps v. Vischer 272, 273 Phillips v. Berick 409 Phillips V. Ferguson 470 Phillips V. McCombs 19 Phillips V. Meily 259 Phillips V. Preston 265 Philomath College v. Hartless . .376, 380 Phoenix Ins. Co. v. Bowdre ... .114, 115 Phoenix Fire Ins. Co. v. Gurnee. . . 76 Phcenix Ins. Co. v. Taylor 225 Phoenix Iron Co. v. Samuel 185 Piatt V. United States 99 Pickens v. Davis 488 Pickering v. Barkley 214. Pickering v. Pickering 46c> Pickett V. Green 150 Pickett V. Nelson 329 Pickrell v. Jerrauld 434 Piedmont & Arlington L. Ins. Co. V. Young 115 Pierce v. Kennedy 270 Pierce v. Pierce 71 Pierce v. Woodward 137, 291 Pierson v. Atlantic Nat. Bk 241 Pike V. Fay 194 Pike v. Hayes 316 Pindar v. Cont. Ins. Co 228 Pindar v. Kings Co. Ins. Co 212 Pindar V. Resolute Ins. Co 109, 112 Pinney v. Fellows 333 Piper V. True 306, 308 Pitcher v. Hennessey. . .80, 81, 83, 84, 91 Pitchford v. Davis 385 Pitkin V. Flanagan 261 xl TABLE OF CASES CITED. Page. Pitney v. Glens Falls Ins. Co 57 Pitt V. Gentle 383 Pitts V. Brown 74, 312 Pittsburgh v. O'Neill 210 Planters' Ins. Co. v. Myers 74 Planters' Ins. Co. v. Sorrels 74 Plumb V. Catt. M. Ins. Co . .74, 108 Plumer v. Guthrie 295 Pohalski v. Mut. L. Ins. CoT 232 Polhemus v. Heiman 228, 232 Police Jury v. Haw 402 Pollard V. Vinton. .55, 350, 354, 355. 358 Pollock V. Helm 236 Pomeroy v. Rocky Mt., etc., Inst. . 115 Pond V. Bergh 4^3 Pond V. Eddy 48 Pope V. O'Hara 40 Pope V, St. Leger 301 Popham V. Brooke 71 Porter v. Bronson 426 Porter v. Pierce 21 Portland Bank v. Stubbs 349, 363 Post V. Mason 71 Potter V. Baker 411 Potter V. Hopkins 130, 173 Potter V. Sewall 94 Potter V. Smith 228, 232 Powell V. Biddle 449, 479, 481, 483 Powell V. Edmunds 149, 162, 164 Powell V. Horton 207 Powelton Coal Co. v. McShain. . .66, 129 Pratt V. Beaupre 241 Pratt V. Castle 348, 374 Pratt V. Elgin Bap. Soc 384 Pratt V. N. Y. Cent. Ins. Co 114 Pratt V. Trustees 376 Prentice v. Knickerbocker L. Ins. Co 113 Prentiss v. Brewer 309 Pres. Soc. v. Beach 376 Pres. Church v. Cooper 380, 384 Pressley v. Kemp 72 Pribble v. Kent 346 Price V. Edmunds 23 Price V. Ferguson 309 Price V. Cover 51 Price V. Monat 184 Price V. Page 479, 483 Prichard v. James 313 Prince v. Griffin 417, 420 Page. Pritchard v. Brown 288, 290, 333 Proprietors v. Theobald 385 Prosser v. Luqueer 259 Providence v. Miller 25 Provii V. Reed 482 Purdy V. Coar 294 Purdy V. Purdy 333 Putnam v. Bond 306, 311 Putnam v. Smith 311 Pym V. Campbell 52, 53, 159 Quarles v. Governor 398 Quarry Co. v. Clements 194 Queen v. Stoke-upon-Trent 220 Queen Ins. Co. v. Young 114 Quick V. Quick 494 Quigley v. De Haas 185 R. V. Holy Trinity 19 Railroad v. Johnson 385 Railroad Co. v. Clarke 385 Railroad Co. v. Durant 22 Railroad Co. v. Johnston 226 Railroad Co. v. Marion Co 408 Railroad Co. v. Mathers 302 Railroad v. Preston 385 Railroad Co. v. Reynolds ig6 Railroad Co. v. Smith 222 Railroad Co. v. Welch 142 Railway Co. v. Knight 355 Railway Co. v. Lamed 356 Railway Co. v. Wilkens 355 Raisin v. Clark 229 Ralston v. Miller 317 Ralston v. Sharon 416 Ramsay v. Wilkie 150 Ramsey v. Young 251 Randall v. Smith 228, 230, 232 Randall v. Van Vechten 28 Randolph v. Halden 228, 232 Rankin v. Am. Ins. Co. 228, 229 Ransom v. Sherwood 269 Rape V. Westcott 22 Rapelye v. Prince 431 Ratclifle v. Smith 302 Rathbone v. Terry 413, 419 Ratliff V. Ellis 334 Raub V. Barbour 44, 143 Rawls V. Deshler 360 Raymond v. Coffey 305, 333 Raymond v. Raymond 335 Raymond v. Roberts 346, 347 TABLE OF CASES CITED. xli Page. Kead v. Bank of Attica 151, 337 Reading v. Weston 37, 38 Rector v, Collins 259 JRedd V. Murry 309 Redfield v. Gleason 137 Redwine v. Side 215 Reed v.. Farr 328 Heed V . Hansom 413 Reed v. Insurance Co 180, 200 Reed v. McCourt 328 Reed v. Pratt 417 Reed v. Reed 413 Reed v. Root 83 Reed v. Van Ostrand. .147, 149, 155, 164 Reed v. Wood 17, 149 Reel V. Reel 483, 492 Rees V. Berrington 24 Reeve v. First Nat. Bank 242 Reffell V. Refifell 16 Reissner v. Oxley 196 Reliance Lumber Co. v. W. U. Tel. Co 14 Relyea v. N. H., etc., Co 349 Remington v. Higgins 8-i, 83 Remington v. Palmer 340 Renard v. Sampson 150, 257 Rendell v. Harriman 2, 247 Rennell v. Kimball 340 Renner v. Bank 228, 433 Rex V. Mashiter 204 Rey V. Simpson 270 Reynell v. Sprye 80, 300 Reynolds v. Commerce Ins. Co. . . . 200 Reynolds v. Magness 32, 36 Reynolds v. Robinson, 19, 52, 54, I44> 152. 464, 476 Reynolds v. Wheelan 481 Rhine v. Ellen 44 Rhodes v. Bate 69 Rhodes v. Rhodes 451 Rhodes v. Risley 261 Rice V. Forsyth 148 Richard v. Harrill 296 Richard v. Wellington 135, 347 , Richards v. Day 403 Richards v. Doe 349 Richards v. Humphreys 484 Richards v. Warring 272 Richardson v. Boynton 389 Richardson v. Johnson loi Page. Richardson's Case 22 Richmond v. Union St. Co 221, 223 Richmond, etc. R. Co. v. Snead. .21, 241 Richmondville Union Seminary v. McDonald j 376 Ricketts v. Pendleton 264 Riggan v. Green 287 Riggs V. Myers 446, 454 Riley v. Griffin 329 Riley V. Mayor 346 Riley v. N. Y. etc. R. Co 140 Ripley v. .^tna Ins. Co. . . .107, 109, 224 River's Case 483 Roberts v. Caldwell 413, 419 Roberts v. Cobb 376, 382, 384 Roberts v. Wilder 216 Robertson v. Coker 401 Robertson v. M'Niel 330 Robinson v. Barnett 256 Robinson v. Hutchinson 483 Robinson v. Kanawha Valley Bk. . 240 Robinson v. McNeill 149 Robinson v. MoUett 227, 228 Robinson v. U. S 221 Robinson v. Williams 49 Rockafellow v. Newcomb 71 Rockhill v. Spraggs 289 Rockwell V. Adams 325 Rodgers v. Perrault 154 Rodney v. Wilson 267 Roe v. Harrison 102 Rogers v. French 484 Rogers v. Hadley 52 Rogers v. Walker 287 Rogers v. Woodruff 230 Rohrbach v. Germania Ins. Co. .log, 112 Rokes V. Amazon Ins. Co 114 RoUeston v. Hibbert 17 Rollins V. Claybrook 167 Roosevelt v. Dryer '. . ... 64 Roots V. Snelling 188 Rose V. Hayden 23 Rosewell v. Bennett 484 Ross V. Espy 268 Ross V. Kurd 256 Ross V. Norvell 295 Rothmahler v. Myers 478 Rothschild v. Grix 269, 272 Routledge v. Worthington Co. . .139, 152 Rowley v. Empire Ins. Co 109 xlii TABLE OF CASES CITED. Page. Ruckman v. Alwood 295 Rudd V. Matthews 258 Ruggles V. Glare : 44 Rugland v. Thompson 246 Russell's Appeal 71 Russell V. Carf 16 Russell V. Church 34^ Russell V. Freer 3g8, 402 Russell V. Kinney 294 Russell V. Maloney 329 Russell V. Southard 47 Ryan v. Dox 295 Ryan v. Ward 348 Ryerss v. Wheeler „ 479, 480 Sahlgard v. Kennedy 416 Salisbury v. Clarke 289, 334 Salmon Falls Manuf. Co. v. God- dard 22,212 Sample v. Robb 318 Sampson v. Gazzam 207, 214 San Antonio v. Lane 406 Sanborn v. Southard 268 Sanders v. Cooper 185, 337 San Remo Hotel Co. v. Brennan . . 103 Sargeant v. Solberg 312 Sargent v. Adams 117, 314 Sari V. Bourdillon 185 Sasser v. Herring 317, 318 Saville v. Chalmers 338 Savings Bank v. A. T. & S. F. R. Co 363 Sawtelle v. Drew 229 Sawyer v. Fellows 332 Sayles v. Sims 262 Sayre v. Wilson 136 Scales V. Ashbrook 80 Scanlan v. Wright 21 Schade'v. Bessinger 295 Schaefer v. Henkel 25 Schattler v. Cassinelli * 123 Schenck v. Griffin 228, 233 Schenck v. Spring Lake Imp. Co . . 23 . Schermerhorn v. Vanderheyden .... 289 Schillinger v. McCann 2S9 Schnitzer v. Print Works 221 Schmied v. Frank 256 Schnittler v. Simon 152, 172, 241 Schmitz V. Schmitz 312 Schneider v. Turner 45 Schofield V. Jones 262 Page. Scholz V. Dankert (37. I72, I73 Schooner Freeman v. Buckingham, 350, 351. 354, 355, 359 Schooner Reeside 207 Schultz V. Coon 348 Schultz V. Plankinton Bank 157 Schultz V. Schultz 494 Schurmeier v. Johnson 46 Scipio V. Wright 407 Scoby V. Blanchard 2go Scoggin V. Schloath 289 Scott V. Hartley 235 Scott V. Irving 227 Scott V. Sweet 251 Scott V. Whipple 398 Scovill V. Griffith 55, 347 Sears v. Railway Co 134 Sears v., Terry 416, 417 Sears v. Wempner 346 Sears v. Wingate 350, 355 Sears v. Wright . . . : 246 Security Bank v. Nat. Bank . . . .228, 275 Security Ins. Co. v. Fay 114 Seel-y v. People 395 Seitz v. Brewers' etc. Co 68 Sellick V. Adams 329. Selwood V. Mildmay . .439, 441, 442, 479 Selden v. Williams 4S3 Sercombe v. Sanders 69 Serviss v. Stockstill 2 Sessions v. Jones 394 Setter v. Alvey 302 Sewall V. Sewall 413 Sewing M. Co. v. Emerson 294 Sexton V. Hollis 3x7 Shackelford v. Hooker 16, 240- Shaefer v. Gates 417, 420^ Shafer v. Bushnell 413 Shailer v. Bumstead 4S3 Shapley v. Abbott 360- Sharkey v. McDermott 484 Sharp V. Leach 69 Sharp V. United States 52 Shaughnessey v. Lewis 16 Shaw V. Mitchell 125 Shaw V. Shaw 253 Shaw V. .Spencer _. . . 229 Shearman v. Angel 470 Shearman v. Niagara F. Ins. Co.. . 114 Sheffield v. Ladue 59, 240 TABLE or CASES CITED. xliii Page. Sheldon v. Benham 15 Sheldon v. Hartford Fire Ins. Co . . 112 Shelton v. Tiffin 413, 419, 421 Shenandoah, etc., R. Co. v. Dunlop, i 95. 335 Shephard v. Little 47 Shepard v. Ryars 329 Shepherd v. Gilroy 148, 155 Shepherd v. Naylor 349 Sherman v. Wilder 62 Sherwood v. Sherwood 456, 478 Shipman v. Furniss 70 Shirras v. Caig 47 Shisler v. VanDike 258 Shoemaker v. Goshen 408 Shoenberger's Exrs. v. Hackman. . . 18 Shore v. Miller 118, 310 Shore v. Wilson 186 Short V. Home Ins. Co ^ 114 Shotwell V. Hamblin 346 Shotwell V. Murray 91 Shriver v. Lynn 420 Shudal V. Jekyll 484 Shugart v. Moore 128 Shumway v. Stillman 419 Shurtz V. Railroad 385 Silberman v. Clark 16, 231 Simmons v. Law 224 Simms v. Smith 334 Simons v. First Nat. Bank • -51. 294, 316 Simonton's Estate 282 Simpson v. Dix 313 Simpson's Will 49° Sims V. State Ins. Co 113 Sims V. U. S. Trust Co 223 Singer Manfg. Co. v. Fordyce 49 Singer Manfg. Co. v. Forsyth 125 Singer Manfg. Co. v. Rook 304 Singleton v. St. Louis Ins. Co. ... . 204 Sioux City, etc., R. Co. v. First National Bank 35°. 356, 361 Sire V. Rumbold 141. 147 Sisson V. Barrett 261 Skaarass v. Finnegan 52 Sleght V. Rhinelander 204 Smith V. Allen 76 Smith V. Beattie 48 Smith V. Beatty 66 Smith V. Brown 354 Smith V. Burton 384 Page. Smith V. Clayton 16, 235 Smith V. Clews 215 Smith V. Crego 14 Smith V. Dallas 149 Smith V. Dann 216, 221 Smith V. Deere 1 50 Smith V. Dudley 332 Smith V. Easton 14 Smith V. Forrest 320 Smith V. Hamilton 332 Smith V. Headrick , . . . . 317 Smith V. Holland 57 Smith V. Johnson 409 Smith V. Kemp 155 Smith V. Kerr 103 Smith V. Maitland 458 Smith V. Marsack 239 Smith V. Niagara F. Ins. Co ; 114 Smith V. Nowells 317 Smith V. Rice 226 Smith V. Rowley 252 Smith V. Smith 244 Smith V. Tallahassee, etc., R. Co. . 388 Smith V. Tunno 389 Smith V. Wood J03 Smith V. Williams 147 Smith V. Wilson 203, 206 Smitheal v. Gray 333, 334 Smith's Will 71 Smyth V. Ward 228, 232 Smythe v. Scott 263 Suavely v. Pickle 295 Snell V. Insurance Co 80 Snelling v. Hall 228, 232 Snow V. Alley 138 Snowdon v. Guion 152, 154, 337 Sohn V. Jervis 228, 232 Solomon v. Jones 99, 244 Somerville v. Trueman 76 Sourse v. Marshall 386 Southall V. Rigg 259 So. Ex. Co. V. Newby 349 Southern L. Ins. Co. \. Booker 113 Southside R. Co. v. Daniel 409 Southw. Ft. Co. V. Stanard 225 Southwick V. Stevens 18 Soutier v. Kellerman . .210, 212, 221, 224 Spann v. Baltzell 99 Sparks v. Pittman 80 Sparrow v. Kingman 32 xliv TABLE OF CASES CITED. Page. Spartali v. Benecke 228, 232 Spears v. Ward ^. . . .228, 232 Specht V. Howard 248, 264 Speckels v. Sax 162 Spencer v. Sloan 260 Spicer V. Cooper 207 Spooner v. Cummings 40 Spradling v. Conway 409 Sprigg V. Bank of Mt. Pleasant ... 24 Springsteen v. Samson 200 , Squires v., Amherst 348 Staak V. Sigelkow 312 Stack V. Beach 263 Stackpole v. Arnold 33, 43, 241, 251 Stacy V. Kemp 138 Stafford v. Fetters 83 St. Albans v. Bush 416 Stannard v. Hubbell 412 Stanton v. Miller 57 Stapleton v. King 348 Stapylton v. Scott 79 Star Ins. Co. v. Bank 258 Starbuck V. Murray, 419, 421, 422,, 425, 426 Starin v. Town of Genoa 406 State V. Garton 399 State V. Hoshaw 166 State V. Morton 409 State V. Paup 80 State V. Peck 398, 399, 402 State V. Potter 402 State V. Saline Co. Court 406 State V. Van Plorne 408 State Bk. v. Evans 393 State Bank v. Fearing 258 State Bank v. McCoy 239 State Mut. Ins. Co. v. Arthur. . .107, iii State Treas. v. Cross 383 Steamboat v. Young 349 Stearns v. Hall 134 Stebbins v. Duncan 15 Stedwell v. Anderson 8i, 83 Steele v. Mart 16, 17 Steele v. Price 452 Steere v. Steere 334 Steines v. Franklin Co 406 Steinhauer v. Witman 44 Stephens v. Monongahela Nat. Bank 262 Stevens v. Cooper 50 Stevens v. Van Cleve -. . 483 Page. Stewards v. Town 155, 387 Stewart v. Aberdein 228 Stewart V. Alberquerque Nat. Bk.. 247 Stewart v. Aten's Lessee 123 Stewart v. Patrick 305, 311, 333 Stewart v. Salomon 245 Stewart v. Schall 62 Stewart v. Smith : 213 Still V. Hoste 444 St. Louis, etc. , R. Co. v. Lamed. 350, 366 St. Luke's Home v. Association . . . 465 Stockbridge Co. v. Hudson Co ... . 76 Stockbridge v. West Stockbridge . . 433 Stockham v. Stockham 16, 48 Stoddard v. Hart 344 Stoddard v. Nelson 167 StoUe v. ^tna F. & M. Ins. Co. . . 115 Stone V. Clark 305, 333 Stone V. Godfrey 92 Stone V. Hubbard 15 Stone V. Rockefeller 256 Stone V. Vance 232 Stoops V. Smith 192 Storer v. Freeman 116 Stouffer V. Latshaw .■ . . 58 Stout V. City F. Ins. Co ] 76 Stout V. Smith 71 Stoutimore v. Clark 239 Stover V. Poole 81 Stowe V. Merrill 245 Strauch v. Hathaway 303, 304 Strimpfler v. Roberts 333 Strode v. Russel 479, 480 ' Strong V. Grand Trunk R. Co 349 Stroud V. Frith 209 Stroud V. Springfield 318 Stucksleger v. Smith 245 Studdy V. Sanders 212 Stultz V. Dickey 143, 222 Sturdivant v. Hull 24, 240 Sturge V. Sturge 69 Sturgis V. Works 476 Sturtevant v. Sturtevant 334 Stuyvesant v. Tompkins 324 Sugden v. St. Leonards 488, 493 Sullivan v. Lear 289 Summerlin v. Hesterly 309 Sumner v. Gay ^ . . 272 Sumner v. Waugh 276 Supervisors v. Schenck 40S TABLE OF CASES CITED. xlv Page. Surles V. State 40 Susquehanna F. Co. v. White 230 Susquehanna M. Fire Ins. Co. v. Ellcins 114 Sutton V. Reagan 66, 287 Swafford v. Whipple 288 Swain v. Frazier 346, 347 Swa)Tie v. Vance 308 Sweeney v. Thomason 234 Sweet V. Parker : 295 Sweet V. Stevens 52, 248 Sweet V. Sweet 492 Sweet V. Tuttle 412 Swett V. Shuraway 193 Syers v. Jonas 220 Sylvester v. Downer 269 Syrames v. Brown 307 Symonds v. Lloyd 211 Tallmadge v. Bank 291 Tankersley v. Graham 265 Tannatt v. Rocky Mt. Bank 240 Tarver v. Garlington 240 Tate V. Williamson 69 Tatem v. Powell 85 Taylor v. Baldwin .' 37 Taylor v. Croker 239 Taylor v. Davis 150 Taylor v. Dustin 409 Taylor v. French 256, 269 Taylor v. Savage 143 Taylor v. Thomas 249 Taylor Co. v. King 402 Tebbetts v. Tilton 417 Tennessee, etc., R. Co. v. East Ala. Ry- Co 335 Terry v. Chandler 328, 331 Terry v. Wacher 6g Tesson v. Atlantic M. Ins. Co. . . . 76 Tevis v. Collier 313 Thacher v. Stevens 263 Thayer v. Viles 291 The Delaware 200, 219, 349 The Lady Franklin 350, 354, 355 Thomas v. Barnes 100, loi, 133 Thomas v. Hammond 125 Thomas v. Nelson 59 Thomas v. Scutt. .127, 153, 170, 336, 337 Thomas v. Stevens 449 Thomas V. Thomas 440, 479 Thompson v. Clubley 25 Page. Thompson v. Corrie 294' Thompson v. Hall 247 Thompson v. Jones 312 Thompson v. ICetcham 245 Thompson v. Layman 347 Thompson v. Lock wood 58 Thompson v. Maxwell 346 Thompson v. Morgan 294 Thompson v. Patton 48, 151 Thompson v. Perrine 407 Thompson v. Riggs 224 Thompson v. Sloan 245 Thompson v. State 413 Thompson v. Whitman 413 Thompson's Lessee v. White 333 Thorington v. Smith 192, 245, 246' Thurber v. Blackbourne 413' Thurber v. Minturn 19 ■ Tilton V. Am. Bible Society 470 ' Tindal v. Bright 394 Tisher v. Beckwith 279 Titus V. Glens Falls Ins. Co 115 Tobey v. Barber 346 Todd V. Reid 237 Toebbe v. Williams 492 Topeka Bridge Co. v. Cummings . . 385 Topliff V. Topliff 198 Towell V. Gatewood 138 Tower v. Fetz 295 Town of Cherry Creek v. Becker. . . 407 Town of Coloma v. Eaves 405 Town of Genoa v. Woodruff 407 Town of Middleport v. ^Etna Life Ins. Co 406 Town of Venice v. Murdock 407 Towne v. Rice 238 Townsend v. Downer 445, 454 Townsend v. Smith 413 Tracey v. Sackett 66 Tracy v. Union Iron Works 152, 165 Treadwell v. Bulkley 293 Trigg V. Read 80 Trueman v. Loder. . .21, 23, 26, 217, 229 Truscott V. King 19, 47, 51 Trijssel v. Lewis 332 Trustees v. Colgrove 462, 479 Trustees v. Dickenson 30a Trustees v. Garvey 376 Trustees v. Haskell 383 Trustees v. Sheik 402 xlvi TABLE OF CASES CITED. Page. Trustees v. Stetson 379, 380 Trustees v. Stewart, 376, 378, 379, 3S0, 381, 382, 384 Tucker v. Seaman's Aid Soc ... .457, 468 Tucker V. Smith 3I7 Tucker v. Welsh 18 Tucker v. Whitehead 491 Tufts V. Greenewald 194 Turner v. Baker 332 Turner v. Cheeseman 493 Turnpike Co. v. Thorp 387 Turpie v. Lowe 295 Twambley v. Rickard 66 Twenty-third St. Church v. Cornell, 376, 383, 384 Tyler v. Carlton 288 Tyler v. Taylor 39 Tynan v. Paschal 492 Tyson v. Passmore 93 Tyson v. Post 4° Tyson v. Tyson 8g Tyson v. Tyson's Exrs 71, 79 Underwood v. Brockman 80 linger v. Jacobs 131 Union Bank v. Meeker 245 Union Cent. L. Ins. Co. v. Pottker, 114 Union College v. Wheeler 278 Union M. L. Ins. Co. v. Kirchoff. . 289 Union R. Co. v. Yeager 350 Union Trust Co. v. Whiton 56 U. S. V. White 239 Universal Fashion Co. v. Skinner. . 67 Usticke V. Bawden 489 Vail V. Rice 228, 231 Van Brunt v. Day 140 Vandervoort v. Columbian Ins. Co . 109 Van Deusen v. Sweet 287, 288 Van Fossen v. State 413 Van Horn v. Horn 165 Van Houten v. Post 484 Van Leuven v. Bank of Kingston. . 241 Van Ostrand v. Reed 136 Van Schoick v. Niagara F. Ins. Co. 109 Vater v. Lewis 239, 241 Vaughan v. Fowler 258 Vanlandingham v. Ryan 409 Veazie v. Forsaith 200 Veeder v. Lima 408 Vermont St. M. E. Church v. Brqse, . 195 Vernor v. Henry 446, 454, 479 Page. Vicary v. Moore 99 Viele V. Germania Ins. Co 99, 115 Vinton v Baldwin 195 Vinton v. Peck 15 Vore V. Hurst 264, 268 Voreis v. Nussbaum 239 Vosburgh v. Teator 33°. 331 Vrooman v. Phelps 61 Waddill V. Sebree 22 Wade V. Beasley 17 Wade V. Carter 48 Wadsworth v. Allcott 229, 347 Wadsworth v. Allen 21 Wadsworth v. Ruggles 479 Waechtershauser v. Smith 213 Wagner's Appeal 479 Wait V. Fairbanks 191 Waite V. Merrill 298 Walden v. Skinner 81 Walker v. Chase 409 Walker v. Crawford 246 Walker v. Engler i65 Walker v. Gregory 297 Walker v. Walker 295 , Wall V Hill's Heirs 287 Wallace v. Kelsall 346 Wallace v. Rogers 185 Wallace v. Townsend 376, 388 Wallis V. Littell 52, 128, 159, 264 Wall's Appeal 484 Walls V. Bailey. . .203, 2it, 224, 225, 226 Walpole V. Orford 484 Walrath v. Thompson 191 Walrath v. Whittekind 16 Walsh V. ^tna L. Ins. Co 114, 115 Walston's Lessee v. White 469 Walters v. Walters 402 Walton V. Cronly 32 Wannell V. Kem 303 Ward V. Allen 255 Ward V. Churn 280, 395 Ward V. Hackett 249 Ward V. Lewis 282 Warde v. Stuart 212 Warden v. Tucker 80 Waring v. Somborn 94 Warner v. Miltenberger 463 Warner v. Warner 489, 492 Warren Bank v. Parker 227 Washburn v. Merrills 295 TABLE OF CASES CITED. X Ivii Page. "Water Power Co. v. Ramsdell 82 "Waterman v. Whitney 482, 486 "Watkins v. Eames 379, 380, 384 Watson V. Blaine 288 "Watson V. Hurt 271 Watson's Lessees v. Bailey 303 "Way V. Batchelder 255 Way V. Butterworth 270 "Wayland v. Mosely 349 Wayland Univ. v. Boorman 246 "Waymack v. Heilman 43, 62 Waynesboro M. F. Ins. Co", v. Con- over 115 "Wead V. St. Johnsbury, etc. R. Co. 310 "Weaver v. Wood 129 "Webb V. Baird 399 "Webb V. Barney 302 Webb V. City Council 80 Weber v. lUing 19 "Webley v. Langstaff 484 Webster v. Cobb 269 Webster v. Phoenix Ins. Co 114 "Webster v. Reid 430 "Webster v. Woodford 58 Webster v. Wray 22, 241 "Weeks v. McBeth 492 "Weeks v. Medler 140 "Welch v. Phillips 489 "Welles V. Yates 76, 94 "Wells V. Dill 398 "Wells V. Jackson Manuf. Co 331 Wells V. Miller 261, 262 "Wells V. Wells 450 Welz V. Rhodius 137, 174 Wemple v. Knopf loi, 151 "Wendlinger v. Smith 136 Wuesthoff V. Seymour 306 "West V. Kelly 125, 246, 251 "Western, etc., Co. v. Kilderhouse. . 64 "West. Nat. Bank v. Wood 251 Westhaf er v. Patterson 302 "Westman v. Krumweide 52, 249 "Weston V. Chamberlin 267 Weston V. Emes 109 Weston V. Johnson 4S4 Wetherell v. Jones 64 Wetherill v. Neilson 149, 228 Wharton v. Christie 59 Wheat V. Cross ' 73 "Wheeler v. Billings 289 Papre. Wheeler v. Newbould 224 ■ Wheeler v. Whipple 71 Wheeler, etc. , Co. v. Laus 2 Wheelock v. Moulton 305, 333 Whelan v. Whelan 69 Whilden v. Merchants and Planters' National Bank 14 Wliitaker v. Richards 402 Whitaker v. Salisbury 52 Whitaker v. Tatham 481 Whitbeck v. Whitbeck 34 White V. Ashton 155 White V. Eagan 307 White V. Graves 304 White V. Hermann Ii6 White V. Hunter 62 White V. Miller 2gl White V. Richmond, etc. R. Co., 154, 374 White V. Scott ,376 White V. Spreckels 332 White V. Sutherland 276 White V. Williams 479 White's Bank v. Myles 155 Wliited V. Germania Fire Ins. Co. . 114 Whitehurst v. Pettipher 317 Whiteley v. King 489 Whitford v. Laidler 56, 402 Whitmore v. Iron Co 339 Whitmore v. Learned 313 Whitney v. Bacon ^ 316 Whitney v. Boardman 16 Whittemore v. Farrington 343 Whittemore v. Whittemore 409 Whyddon's Case 285 Widdifield v. Widdifield 19 Wigglesworth Y. Dallison 219 Wight V. Shelby R. Co 388 Wightman v. Overheiser 347 Wilbourn v. Shell 494 Wilbur V. Stoefel 258 Wilcox V, Jackson 420 Wilcox v. Wood 222 Wilhite V. Roberts 301 Wilkinson v. Scott 288, 291 Wilkinson v. Wilkinson 294 Willan V. Willan 69 Willard v. Ostrander 155 Willcutts v. N. W. L. Ins. Co. ... I13 Williams v. Bank 263 Williams v. Glenn 261, 262 xlviii TABLE OF CASES CITED. Page. Williams v. Hartford Ins. Co 114 Williams v. Hilton 51 Williams v. Hollingsworth 333 Williams v. Wood 210 Williams v. Powell 71 Williams v. Railway Co 35^ Williams v. Robson 303 Williams v. Rogan 37^ Williams v. Searcy 336 Williams v. Thurlow ; 294 Williams v. Wilmington, etc. R. Co. 350 Williams College v. Danforth 384 Williamson v. Ball 420 Williamson v. Berry 417, 420 Williamson v. Cambridge R. Co. . 14 Williamson v. City of Keokuk 406 Williamson v. Smith 244 Willis V. Hulbert 146, zgi, 340 Wills V. Leverich 310 Wilmerling v. McGaughey 231 Wilson V. Cockran 293 Wilson V. Deen. . .91, 131, 152, 170, . 172, 336 Wilson V. Kennedy 17 Wilson V. Minn. F. M. Ins. Assn. . 113 Wilson V. Powers 52, 134 Wilson V. Randall 20, 78, 195 Wilson V. Sherburne 164, 339 Wilson V. Smith 121 Wing V. Click 82 Wingate v. Haywood 416, 417, 420 Winkley v. Kaime 445, 454, 463 Winn V. Chamberlin 349 Winn V. Sariford . : 260 Winnisimmet Co. v. Wyman 333 Winslow V. Driskell 95 Wiseman v. No. Pac. R. Co 15 Witbeck v. Waine 288 Witzler V. Collins 346. 349, 350 Wodock V. Robinson 40, 167 Wolf V. Fletemeyer 62 Wolford V. Powers 252 Wollaston V. Tribe 71 Wollner v. Lehman 18 Wood V. Boyd 305 Wood V. Broadley 294 Wood V. Foster 316 Page. Wood V. Matthews 261 Wood V. Moriarity 289. Wood V. Rable 471 Wood V. Washburn 395 Wood V. Willard 316, 317 Woodard v. Foster 171 Woodbury v. Woodbury 71- Woodbury Savings Bank v. Charter Oak Ins. Co 74, 79, 90, 107 Woodcock V. Johnson . . . ., 287 Wooddy V. Old Dominion Ins. Co. 113. Woodman v. Eastman 35. Woodruff V. Merch. Bank. .228, 231, 236 Woods V. Armstrong 252 Woods V. Lawrence Co , 406 Woods V. Moore 447, 454 Woodward v. Foster 263, 336 Woodward v. McGaugh i66- Woolner v. Hill : 99 Woolverton Estates 45a Workman v. Wright 258 Worrall v. Munn. .28, 144, 280, 283, 284, Worrell v. Forsyth ic6, 402 Worthington v. Hylyer 306, 308 Wren v. Wardlaw 152 Wright V. Andrews 256 Wright V. Bates 295 Wright V. Douglass 425 Wright V. Marsh 416, 420 Wright V. Morse 265 ^ Wright V. Proud 69 AVright V. Remington 247, 263, 267 Wrightsman v. Bowyer 49 Wyche V. Greene 76 Wynne v. Alexander 314 Yaple V. Titus 416 Yarbrough v. Newell 48 Yates V. Cole 469 Yates V. Pyra 203 Yeatman v. Bradford 416 Yundt's Appeal 464 Youndt V. Youndt 492 Young V. Black , 409 Young V. Hartford F. Ins. Co ... . 113 Young V. Lorain 310 Young V. Stevens 287 Ziegler v. McFarland 253 A TREATISE ON THE ADMISSIBILITY OF PAROL EVIDENCE IN RESPECT TO WRITTEN INSTRUMENTS PAROL EVIDENCE. CHAPTER I. Introductory. Sec. I. General rule excluding parol evidence. 2. Reasons for exceptions to the rule. 3. Scope of this treatise. 4. Codifications of the subject. Sec. 1. General rule excluding parol evidence. There are few rules of the law so familiar, so well settled and so frequently applied as this : Parol evidence is inadmissible to contradict or vary the terms of a written contract. Authorities for this rule : When parties have chosen to put their agreement in writing, the paper constitutes the best evi- dence of the agreement, and the parties thus make it their wit- ness to speak the concurrence of their minds. " The law will not make nor permit to be made for parties a contract other than that which they have made for themselves." " Men are taken to mean what they have chosen to say delib- erately and in a permanent form, rather than what they may have said in hasty and less considered discourse. Hence the general rule that evidence of an oral agreement is not admissible to con- tradict the terms of a written document." ' The most elegant of all law writers has said: "To admit oral evidence as a substitute for instruments to which, by reason of their superior authority and permanent qualities, an exclusive authority is given by the parties, would be to substitute the infe- rior for the superior degree of evidence ; conjecture for fact, and presumption for the highest degree of legal authority; loose ' Pollock Cont. (Wald.), 438. 2 PAROL EVIDENCE. recollection and uncertainty of memory for the most sure and faithful memorials which human ingenuity can devise or the law adopt — to introduce a dangerous laxity and uncertainty as to all titles to property, which, instead of depending on certain fixed and unalterable memorials, would thus be made to depend on the frail memories of witnesses, and be perpetually liable to be impeached by fraudulent and corrupt practices." ' So one of the greatest of American jurists has said: "The true meaning of the rule excluding parol evidence is, that such evidence shall never be received to show that i the intention of the parties was directly opposite to that which their language expresses, or substantially different from any meaning that the words upon any construction will admit or convey."^ " Other terms can never be substituted for those which the parties have used, and parol evidence can under no circumstances contradict that language of a written contract which expresses the mutual will of the parties."' " If the parties have reduced their contract and the whole of it to writing, and the instrument is free from ambiguity or uncer- tainty, the courts have universally applied the rule, and excluded parol evidence to vary the terms of the contract." * Sec. 2. Reason for exceptions to the rule. Yet this general rule is neither invariable nor inflexible, but adapts itself to the manifold and shifting exigencies of human affairs. The paper witness, to whose keeping the parties have entrusted the expression of their agreement, like human witnesses, is. subject to a variety of tests. As the human witness is liable to be impeached or discredited, shown to be fraudulent, mistaken, or under compulsion or undue influence, or not to disclose the whole story or to tell it ambiguously, obscurely or unintelligently, and thus his testimony is subject to cross-examination, amplifica- tion, explanation, and total or partial discredit or contradiction, so in many instances, from the overpowering necessities of human ' Starkie Ev., 651. Wheeler, etc., Co. v. Laus, 62 Wis. 635. " I Duer Ins., 176. McCormick v. Huse, 66 111. 315. ^ Jones Interp. Cont. 74. Brunhild v Freeman, 77 N. C. 128. * Hubbard v. Marshall, 50 Wis. 322. Merriam v. Pine City L. Co., 23 Minn. See also Marsh v. McNair, 99 N. Y. 176. 314. No. Am. Fire Ins. Co. v. Throop, 22 Serviss v. Stockstill, 30 Ohio St. 419. Mich. 146. MacLeod V. Skiles, 81 Mo. 595 ; S. C Rendell V. Harriman, 75 Me. 497. 51 Am. Rep. 254. Goss V. Ellison, 136 Mass. 503. INTRODUCTORY. 6 intercourse, the testimony of the paper witness is not to be taken absolutely and as the only warrant of belief, but is subject to a large number of conditions. The law takes into consideration the fact that most agreements are drawn up by unskilled persons, ignorant of the legal rules of construction, who very frequently do not embody the entire agreement or else express it vaguely or ambiguously;' and the fact that even where agreements are drawn up by legal experts, the same faults and defects are attrib- utable, sometimes from insufficient instructions from the client, sometimes from error of the counsel himself A great deal of judicial leniency should be and is extended to uninstructed per- sons, where experience has demonstrated that some of the wisest lawyers who have ever lived have not known enough to draw their own wills ; for example, Lord St. Leonards, Charles O'Con- nor, and Samuel J. Tilden. It seems very difficult to write unambiguously even by inspiration. Thus the Revelator (Rev. Xxii : 2), speaking of the " tree of life," says it " bare twelve manner of fruits and yielded her fruit every month." Parol evi- dence should be admissible to determine whether it bare all twelve kinds every month, or only one kind monthly. The body of the exceptional law that has thus sprung up is much larger than that of the corroborative law. Sec. 3. Scope of this work. It is the purpose of this treatise, not to heap up authorities in support of the familiar aftd elementary principle announced above, but to array and explain the exceptions to the rule — to set forth the admissibility rather than the non-admissibility of parol evi- dence in respect to written instruments. The authorities corrob- orating the general rule will be chiefly considered only when they seem to constitute exceptions to the exceptions. It is also not within the purpose of this work to treat of the admissibility of parol evidence in respect to instruments under the statute pf frauds. Sec. 4. Codifications of this subject. There have been two recent private codifications of the excep- tions to the rule excluding parol evidence. The more celebrated is that by Sir James Fitz James Stephen, forming a part of his Digest of Evidence. His provisions are as follows : ' " A large proportion of business contracts, involving vast sums of' money, are made upon the signing of a mere memorandum." (Jones Const. Cent., § 130.) 4 parol evidence. " Article 90. " When any judgment of any court or any other judicial or official proceeding, or any contract or grant, or any other dispo- sition of property, has been reduced to the form of a document or series of documents, no evidence may be given of such judg- iment or proceeding, or of the terms of such contract, grant, or other disposition of property, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained. Nor may the contents of any such document be contradicted, altered, added to, or varied by oral evidence. " Provided that any of the following matters may be proved : "(i) Fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, the fact that it is wrongly dated, want or failure of consideration, or mistake in fact or law, or any other matter which, if proved, would produce any effect upon the validity of any document, or of any part of it, or which would entitle any person to any judgment, decree, or order relating thereto. " (2) The' existence of any separate oral agreement as to any matter in which a document is silent, and which is not inconsistent with its terms, if from the circumstances of the case the court infers that the parties did not intend the document to be a complete and final statement of the whole of the transactions between them. " (3) The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property. " (4) The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant, or disposition of property, provided that such agreement is not invalid under the statute of frauds, or otherwise. " (5) Any usage or custom by which incidents not expressly mentioned in any contract are annexed to contracts of that idescription ; unless the annexing of such incident to such contract would be repugnant to or inconsistent with the express terms of tthe contract. " Oral evidence of a transaction is not excluded by the fact iihat a documentary memorandum of it was made, if such memo- a-andum was not intended to have legal effect as a contract, or •other disposition of property. INTRODUCTORY. !> " Oral evidence of the existence of a legal relation is not excluded by the fact that it has been created by a document, when the fact to be proved is the existence of the relationship itself, and not the terms on which it was established or is carried on. "The fact that a person holds a public office need not be proved by the production of his written or sealed appointment thereto, if he is shown to have acted in it. "Article 91. "(i) Putting a construction upon a document means ascer- taining the meaning of the signs or words made upon it, and their relation to facts. " (2) In order to ascertain the meaning of the signs and words made upon a document, oral evidence may be given of the mean- ing of illegible or not commonly intelligible characters, of foreign, obsolete, technical and provincial expressions, of abbreviations and of common words which, from the context, appear to have been used in a peculiar sense; but evidence may not be given to show that common words, the meaning of which is plain, and which do not appear from the context to have been used in a peculiar sense, were in fact so used. " (3) If the words of a document are so defective or ambiguous as to be unmeaning, no evidence can be given to show what the author of the document intended to say. " (4) In order to ascertain the relation of the words of a docu- ment to facts, every fact may be proved to which it refers, or may probably have been intended to refer, or which identifies any person or thing mentioned in it. Such facts are hereinafter called the circumstances of the case. "(5) If the words of a document have a proper legal meaning, and also a less proper meaning, they must be deemed to have their proper legal meaning, unless such a construction would be unmeaning in reference to the circumstances of the case, in which case they may be interpreted according to their less proper meaning. "(6) If the document has one distinct meaning in reference to the circumstances of the case, it must be construed accordingly, and evidence to show that the author intended to express some other meaning is not admissible. "(7) If the document applies in part but not with accuracy to the circumstances of the case, the court may draw inferences from 6 PAROL EVIDENCE. those circumstances as to the meaning of the document, whether there is more than one, or only one thing or person to whom or to which the inaccurate description may apply. In such cases no evidence can be given of statements made by the author of the document as to his intentions in reference to the matter to which the document relates, though evidence may be given as to his circumstances, and as to his habitual use of language or names for particular places or things. "(8) If the language of the document, though plain in itself, applies equally well to more objects than one, evidence may be given both of the circumstances of the case and of statements made by any party to the document as to his intentions in refer- ence to the matter to which the document relates. " (9) If the document is of such a nature that the court will presume that it was executed with any other than its apparent intention, evidence may be given to show that it was in fact executed with its apparent intention. "Article 92. "Articles 90 and 91 apply only to parties to documents, and to their representatives in interest, and only to cases in which some civil right or civil liability dependent upon the terms of a document is in question. Any person other than a party to a document or his representative in interest may, notwithstanding the existence of any document, proye any fact which he is other- wise entitled to prove ; and any party to any document or any representative in interest of any such party may prove any such fact for any purpose other than that of varying or altering any right or liability depending upon the terms of the document." In the proposed Code of Evidence for the State of New York, it is provided (sees. 153, 159-162, 166, 167, 168) : "When an agreement has been reduced to writing by the parties, it is to be considered as containing all the terms of the agreement, and there can be, between the parties and their repre- sentatives or successors in interest, no evidence of such terms other than the contents of the writing, nor can there be any evidence to vary or contradict them, except to prove the facts mentioned in sub-divisions one, two, three, four and five of this section : " I. Fraud, duress, illegality, want of due execution, want of capacity in any contracting party, the fact that it is wrongly INTRODUCTORY. 7 <3ated, want or failure of consideration, or mistake in fact^ or any- other matter which if proved would affect the validity of the writing, or some part of it, or which would entitle any person to a judgment or order in relation thereto; " 2. The existence of any separate oral agreement respecting a matter on which the writing is silent, and which is not incon- sistent with its terms, if from the circumstances of the case it appears that the parties did not intend the writing to be a complete and final statement of the whole of the transactions between them ; " 3. The existence of a separate oral agreement, constituting a condition precedent to the attaching of any obligation under the writing ; "4. The existence of a distinct subsequent oral agreement to rescind or modify such writing, if such agreement is not invalid under the statute of frauds ; " 5. Any usage or custom by which incidents not expressly mentioned in the writing are annexed to contracts of that descrip- tion ; unless the annexing of such incidents would be repugnant to or inconsistent with the express terms of the contract. " 6. Oral evidence of a transaction is not excluded by the fact that a memorandum of it was made, if the memoraVidum was not intended to take effect as a legal contract. "7. Oral evidence of the existence of a legal relation is not excluded by the fact that it has been created by a writing, when the fact to be proved is the existence of the relationship itself, and not the terms on which it was established or is carried on. "§ 159. When the language used in writing is plain in itself and applies accurately to existing facts, evidence is not relevant to show that it was not intended to apply to such facts. " § 160. When the language used in a writing is plain in itself, but is unmeaning in reference to existing facts, evidence is rele- vant to show that it was used in a peculiar sense. " § 161. When the facts are such that the language used might have been intended to apply to any one, and could not have been intended to apply to more than one, of several persons or things, evidence is relevant to show to which of those persons or things it was intended to apply. " § 162. When the language used applies partly to one set of existing facts, and partly to another set of existing facts, but the 8 PAROL EVIDENCE. whole of it does not apply correctly to either, evidence is relevant to show to which it was intended to apply. " § i66. For the proper construction of a writing, the circum- stances under which it was made, including the situation of the subject of the writing, and of the parties to it, may be shown, so that the court may be placed in the position of those whose language it is to interpret. " § 167. The terms of a writing are presumed to have been used in their ordinary meaning, but evidence to show that they have a local, technical or peculiar meaning, and were so used and understood in the particular instance, is relevant, and in that case the agreement must be construed accordingly ; but evidence is not relevant to show that common words, the meaning of which is. plain, and which do not appear from the context to have been used in a peculiar sense, were in fact so used. " § 168. When the characters used in a writing are difficult to be deciphered, or the language of the writing is npt understood, the evidence of a person skilled in deciphering the characters, or who understands the language, is relevant to explain the charac- ters, or the meaning of the language." These latter rules seem to a considerable degree derived from those of Sir James Fitzjames Stephen, but are much more concise and on the whole are better expressed. It will be observed that to the first sub-division Stephen adds mistake of law as a ground of admission, which might judiciously have been adopted in the New York scheme. As a general statement of the admissibility of parol evidence these proposed rules seem excellent. In addition to these two digests, there is the very celebrated work of Vice-Chancellor Wigram on Extrinsic Evidence in respect to Wills, in which he stated the law under several propositions or rules, illustrating them by a copious treatment of the cases. This treatise has become a classic, and has afforded a model to many subsequent law-writers. Wigram's rules will be given in full in the chapter on Wills. My indebtedness to these three sources will be evident to the reader ; but I have endeavored to profit by them all, to lay down more detailed propositions, except in regard to wills ; to add all the ancient and modern illustrations of prominent value, and thus to adapt the discussion at once to the practical and sudden needs- of the practitioner and the leisurely research of the student. INTRODUCTORY. 9 Mr. Austin Abbott lays down the following general rules for the admission of parol evidence (Trial Ev.) : " I. Where the action is not between the parties to the instru- ment, nor those claiming under or in priority with them. " 2. Where the object of the evidence is to impeach the validity of the instrument, or any part of it. " 3. Where the object of the evidence is to establish a separate oral agreement constituting a condition precedent to the existence of an obligation claimed to arise on the instrument. "4. Where the object of the evidence is simply to show the surrounding circumstartces of the parties, and of the subject of the contract, and the usages of language under which the instrument 'was written, in order to enable the court to read the instrument with the same knowledge with which the parties wrote it. " 5. Where the language of the instrument leaves its meaning" doubtful, or extrinsic facts in evidence raise a doubt in respect to its application. " 6. Where it appears that the instrument was not intended to be a complete and final statement of the whole transaction, and the object of the evidence is simply to establish a separate oral- agreement on a matter as to which the instrument is silent, and which is not contrary to their terms, nor to their legal effect. " 7. Where the object of the evidence is to show a usage legally affecting the parties, by which incidents not expressly mentioned in such contracts are annexed to or implied in them, if the usage be not repugnant either to the express terms or the legal effect of the contract. " 8. To show, if the contract be unsealed, that it was made for the benefit and on behalf of the party suing or sued upon it, even though he be not named in it ; or if it be sealed, that it was so niade, and has been duly ratified by such party. " 9. To show that the date was erroneous. " 10. To show that the consideration was different from that stated (except for the purpose of defeating the instrument), or that it was not paid, though payment was acknowledged. "II. To show that a transfer absolute on its face was given as security or in trust. " 12. To show the mistake which caused a repugnancy appear- ing on the face of the instrument. " 13. Where the object of the evidence is to show a subsequent 10 PAROL EVIDENCE. valid agreement to rescind, modify, extend or waive the contract or any provision of it." Mr. Charles Chamberlayne, in his notes to Best on Evidence (p. 229, Am. ed. 1883), lays down the following " Parol Evidence Rule": "Parol evidence is inadmissible to control or contradict the ascertained purport of any document under seal, or other valid written instrument of a solemn and conclusive nature, in any suit founded upon such instrument, and between the parties or privies thereto. * * * The instrument, therefore, is conclusive as to the point which it covers. As a natural consequence the rule does not apply to third persons or to suits between one party and a. stranger. For this reason also, all anterior and contemporaneous stipulations and representations are merged in the writing and cannot be given in evidence. So no evidence of conversations leading to a contract is admissible. It follows that if the instru- ment was not in point of fact intended to fairly represent the intent and whole agreement of the parties, the rule as above stated does not apply, * * * it follows that any evidence is admissible which may form in law or equity ground of relief against the operation of the instrument, though the effect, and indeed the object, of such evidence is to contradict such instrument. Thus (i) evidence is admissible to show that an instrument was procured or influenced by fraud or misrepresentation. (2) Or by duress. (3) Or was executed for purposes forbidden by law. (4) Or was executed by a person legally incapable, at the time, of incurring legal liability, by reason of some incapacity, natural or superinduced, or by operation of law. (5) So also in cases where the active aid of a court of equity is invoked with regard to a written agreement, evidence will be received that such agreement was founded upon a mistake of material facts. But mistake in law not being ground for equitable relief, evidence of such mis- take will not be received to vary or control the effect of a written instrument. Parol evidence will be received to show that a deed prima facie absolute is in reality a trust on a mortgage. (6) So it may be shown that the instrument was always inchoate or con- ditional ; that it was at ho time freely and finally delivered to the plaintiff by the party charged, in accordance with its apparent tenor. (7) So also parol evidence is admissible to prove that a written instrument or part thereof, has been discharged. (8) Or that a new agreement has been substituted by consent of the INTRODUCTORY. 11 parties, * * * the language to be read is to be read in the light of all the surrounding circumstances, it being obviously impossible to tell what a man has said, until it is ascertained what he has meant to say. Any relevant evidence, therefore, which fairly partakes of the nature of explanation, or is reasonably cal- culated to place the court in the situation of the parties at the time of execution will in general be received, (i) Thus evidence may be given of technical or peculiar usage in order to qualify or explairr the language, signs, 'or abbreviations employed by the parties. (2) So the condition, nature and qualities of the subject matter of a statement or agreement may be shown by parol evi- dence. Such evidence is obviously necessary to identify the sub- ject-matter, or to identify the persons affected by the document. •(3) So evidence of any custom or usage — business or otherwise — in reference to which the parties may fairly be supposed to have contracted, is admissible to explain or supplement their language. It is of course possible at all times to prove by parol the existence of a paper as a fact, in all cases where its contents are not material to the rights of the parties, or where the party proving it does not seek to avail himself of the contents as proof of any fact stated in it, or of any obligation created or discharged by it." It may be useful to contrast these modern rules with those laid down by an ancient, writer, as for example Bacon in his Abridg- ment, who says : " It seems to have been agreed as a general rule, even before the statute of frauds and perjuries, that no parol evidence could be admitted to control what appeared on the face of a deed or will, not only from the danger of perjury, but from a presumption that whatever the parties at the time had in contemplation was all reduced into writing. But this rule has received a relaxation, especially in the courts of equity, where a distinction has been taken between evidence that may be offered to a jury, and evi- dence to inform the conscience of the court, viz.: that in the first no such evidence should be admitted, because the jury might be inveigled thereby ; but that in the second it could do no hurt, because the court were judges of the whole matter, and could distinguish what weight and stress ought to be laid on such evidence. Also to ascertain a fact, parol evidence hath been admitted to explain the intent of a testator. * * * It hath also been admitted in equity to prove a variation between the agreement executed and the agreement intended, upon a sugges- 12 PAROL EVIDENCE. tion that such variance hath happened through mistake, frauds etc. So if a deed intended to be a mortgage is by mistake and accident made an absolute deed, chancery will treat it as a mort- gage, and parol evidence is admissible to show the mistake. So. parol evidence is admissible to show whether a thing be parcel or not of the estate demised by a deed. So to show that persons- describing themselves in a certificate as officers of the parish at: large, were the officers of the hamlet where the pauper was set- tled. In explanation of mercantile contracts it is every day's practice to resort to it. Parol evidence may be admitted to explain a written instrument which on the face of it appears equivocal. Where an agreement on unstamped paper has been lost or destroyed, no parol evidence can be given of its contents. Although parol evidence may be received to explain, yet it can never be admitted to annul or substantially to vary a written instrument. In no case can evidence of a parol communication between the parties be received, to add a terrn not inserted in the specific agreement which they have executed ; for what has passed between them may have been altered and shifted in a variety of ways, but what they have signed and sealed was fully settled. And my Lord Thurlow laid it down as a rule of law which it was impossible to break in upon, that nothing could be added to the written agreement, unless in cases where there is a clear subse- quent independent agreement varying the former, not where it is of matter passing at the same time with the written agreement. Cotemporary and continuing usage may be given in evidence to explain doubtful words in old instruments." PRIMARY RULES. 13 CHAPTER II. Primary Rules. Sec. 5. Existence of writing. 6. Exclusion applied solely to agreements. 7. Lost instrument. 8. Ownership of personal property. g. Obscurities, peculiar characters and abbreviations. 10. Uncommon words and phrases. 11. Alterations. 12. Date and delivery. 13. Lack of statutory requirement in agreement not required to be in writing. 14. Execution of paper not within the issue. 1 5. Collateral documents. 16. Rebutting equities and presumptions. 17. Fact of public office. 18. Legal relations of parties. 19. Descriptions of personal property. 20. Description partly incorrect. 21. Loss of rights. 22. Other writings. There are some elementary, fundamental and familiar rules of parol evidence, which stand in very little need of corroboration or illustration by authorities, which it will be well to array in the beginning, for the sake of logical completeness. They are as follows : Sec. 5. Existence of writing. Parol .evidence is competent to show the existence of a writing, and that it was intended as an agreement. Illustration : Thus where two letters are sent in one envelope, the circumstances may be proved to show that the letters were intended to form an agreement.' Sec. 6. Writings which are not agreements. The exclusion of parol evidence applies strictly to matters of agreement, and not to writings which are not of the character of agreements. ' Barney v. Forbes, 118 N. Y. 580. Hotchkiss v. Mosher, 48 N. Y. 485. Whart. E v., § 931. 14 PAROL EVIDENCE. Illustrations: Thus, for example, a mere letter is always explainable by parol, for it is of the character of a bare admission. So the meaning of the words, in a letter, "arranged with the district attorney to drop case " were held explainable by parol.* Parol evidence is competent to show the contents of an applica- tion for insurance.^ Parol evidence of the contents of a telegraphic dispatch, without showing its loss or destruction, or notice to pro- duce it, is incompetent.* Not so where the original and the office from which it was sent are out of the jurisdiction.* In Commonwealth v. Pope, 3 D^na, 418, parol evidence was held admissible, on the trial of an indictment for sending a chal- lenge to fight a duel, to explain the words in a letter, "You will now afford, me the satisfaction which is due from man to man." The court said : " This court cannot judicially know the technic of duellists ; nor can we be presumed to possess a judicial knowl- edge respecting the accustomed etiquette and forms observed in negotiations preliminary to those belligerent interviews errone- ously denominated affairs of honor. But we may presume that when the parties interchange written communications, if neither can be convicted unless those documents literally import a chal- lenge or an acceptance to fight in single combat, with deadly weapons, the statute prohibiting the practice of duelling would become a mere brutum fulmen, without any practical efficacy whatsoever. The communications in writing constitute only one species of evidence of the fact that an unlawful challenge has been given or accepted ; they may not constitute the whole, or the only, or even the most direct and explicit proof. They may, therefore, when they exist, be explained or applied or aided by oral evidence ; " " oral proof as to what Pope intended or Prentice understood by it, would not be inconsistent with any rule of evi- dence or of common sense." Sec. 7. Lost instrument. Parol evidence is admissible to prove the contents of ' Smith V. Crego, 54 Hun, 22. Barons v. Brown, 25 Kans. 410. Foster v. Dickerson, — Vt, — ; 24 Magie v. Hermon, — Minn. — ; 52 Atl. Rep. 453. N. W. Rep. qio. ' Williamson y. Cambridge R. Co. 144 Contra: Reliance Lumber Co. v. \V. Mass. 148. U. Tel. Co. 58 Tex. 394 ; S. C. 44 ' Cairo and St. Louis R. Co. v. Mahoney, Am. Rep. 620. 82 111. 73; S. C. 25 Am. Rep. 299. * Whilden v. Merch. and Planters' Nat. Smith V. Easton, 54 Md. 138. Bk. 64 Ala. i ; S. C. 38 Am. Rep. i. Howley v. Whipple, 48 N. H. 487. PRIMARY RULES. 15 an instrument that has been lost or destroyed, or is not produced upon notice.^ And so, where the instrument is not lost, but is shown to be beyond the jurisdiction of the court.^ But not without proof of an effort to obtain the paper.' Where a party refuses to produce the instrument on notice, he is bound by the other's parol proof of its c6ntents. Sec. 8. Ownership of personal property. Parol evidence is competent to establish ownership of personal property, although the owner acquired title by virtue of a written instrument still existing.* And so defendant, in an action of detinue, may prove by parol evidence that he never had possession, although he has intro- duced a wrirten agreement of sale to himself.' Sec. 9. Obscurities and peculiarities. An obscurity in the handwriting, whether from age, accident or the character of the hand itself, may be solved by a resort to parol and opinion evidence, and the same is true of peculiar characters and abbreviations. Illustrations : Thus in Dresler v. Hard, 127 N. Y. 235, the opinion of an expert was admitted to show whether " Juy" in the date of a receipt stood for Jan. or July. So in Sheldon v. Benham, 4 Hill, 131, an expert was allowed to testify to the mean- ing of certain characters and abbreviations in entries made by a deceased officer of a bank. So in Armstrong v. Burrows, 6 Watts, 266, such evidence was allowed to determine whether a date was 1823 or 1824. In Vinton v. Peck, 14 Mich. 287, an expert engraver was allowed to testify whether a figure had been altered from "8" to "80." In Norman v. Morrell, 4 Vesey, 770, parol evidence was allowed, to show whether a figure was 8 or 3, and in Stone V. Hubbard, 7 Cush. 595, to determine whether a figure was 4 or 2. Parol evidence is competent to prove what was intended by blotted and illegible or obscure figures. " If the writing cannot ' Stebbins v. Duncan, io8 U. S. 32. * Gallagher v. I^ondon Assur. Corp. — ' Manning v. Maroney, 87 Ala. 563 ; S. Pa. St. — . C. 13 Am. St. Rep. 67. ' Burns v. Morrison, — W. Va. — ; S. 3 Wiseman v. No. Pac. R. Co. 20 Greg. E. Rep. 62. 425 ; S. C. 23 Am. St. Rep. 135. 16 PAROL EVIDENCE. be read, the defendant is not entitled to its obscurity any more than the plaintiff."' Sec. 10. Technical expressions. Parol evidence is admissible to explain the meaning of words and phrases not In common use, such as foreign, obsolete, scientific, abbreviated, or technical expressions. Illustrations : As for example, " C. O. D.," " f. o. b.," " mod." So of " cold storage." Behrman v. Linda, 47 Hun, 530. " Square- inch of water." Jonesville Cotton Mills v. Ford, Wis. 52 N. W. Rep. 764.^ Sec. 11. Alterations. Parol evidence is competent to explain or show alter- ations.^ , Sec. 13. Date and delivery. The true date of any instrument may be shown by parol, without regard to the date recited, and the date of delivery may be shown although different from the date of the instrument.* Illustrations : A mistake in the date of a letter may be cor- rected by parol evidence.* The time of delivery of a lease may ' Walrath v. Whittekind, 26 Kans. 482. Casler v. Conn. M. L. Ins. Co., 22 N. " See also Arthur V. Roberts, 60 Barb. 580. Y. 427. Silberman v. Clark, 96 N. Y. 522. Mansfield R. Co. v. Veeder, 17 Ohio Callender v. Dinsmore, 55 N. Y. 200. 385. Page V. Cole, 120 Mass. 37. » i Greenl. Ev., § 564 Cooper V. Smith, 1,5 East. 102. Neil v Case, 25 Kans. 510; S. C. 38 Whitney v. Boardman, 118 Mass. 243. Am. Rep. 259 and note 260. Hartwell v. Camman, 10 N. J. Eq. 128. * Shaughnessey v. Lewis, 130 Mass. 355. Smith V. Clayton, 29 N. J. L. 357. Russell v. Carr, 38 Ga. 459. Armstrong v. Burrows, 6 Watts, 266. Paige v. Carter, 64 Cal. 489. Farmers & Mechanics' Bank v. Day, 13 Germania Bank v. Distler, 64 N. Y. 642. Vt. 36. Perry v. Smith, 34 Tex. 277. Hatch V. Douglas, 48 Conn. 116. Abrams v. Pomeroy, 13 111. 133. Fenderson v. Owen, 54 Me. 372. Barnet v. Abbott, 53 Vt. 120. Busch V. Pollock, 41 Mich. 64. Hartsell v. Myers, 57 Miss. 135. Shackleford v. Hooker, 54 Miss. 716. Reffell v. Reffell, L. R., 1 P. & D. 139. Barlow v. Lambert, 28 Ala. 704. Steele v. Mart, 4 B. & C. 272. Callahan v. Stanley, 57 Cal. 476. Cooper v. Robinson, 10 M. & W. 694. Whart. Cont., § 634. Hall v. Cazenove, 4 East. 477. 2 Phill. Ev. 709. I Greenl. Ev., §§ 285, 305. Miller v. Burke, 68 N. Y. 615. Pascault v. Cochran, 34 Fed. Rep. 358. Partridge v. Ins. Co., 15 Wall. 573. ' Stockham v. Stockham, 32 Md. 196. PRIMARY RULES. 17 be shown although it differs from the date of the lease.' So of a deed or mortgage.' Omitted dates may be supplied and wrong dates corrected by parol.' Sec. 13. Irregular instruments not necessarily in writing. Where a contract is one not required by the law to be in writing, and is inadmissible in evidence for lack of some statutory requirement, parol evidence of the con- tract may be given. Illustrations: Thus in Leach v. Hale, 31 Iowa, 69; S. C. 7 Am. Rep. 112, where a bank issued a certificate of deposit, on receipt for money deposited, and the proper United States reve- nue stamp was not - affixed, parol evidence of the deposit was received. The same was held in McAfferty v. Hale, 24 Iowa, 355. The court there said : "The writing itself cannot be uspd as an instrument of evidence, but the original contract remains unaffected, and if by the rules of law it is such as may be shown by parol, the attempt to reduce it to writing will not exclude the evidence." Citing Brown v. Watts, i Taunt. 353 ; Wilson v. Kennedy, i Esp. 245 ; Alves v. Hodgson, 7 T. R. 241 ; Wade v. Beasley, 4 Esp. 7. Contrary doctrine : There is an obiter dictum to the contrary in Reed v. Wood, 9 Vt. 287. In Rolleston v. Hibbert, 3 T. R. 406, there was a bill of sale of a ship, not containing the certifi- cate of the registry, which defect rendered it void by statute. Kenyon, L. C, J., said: " It was first contended that it is not necessary that the property in a ship shall pass by a written instrument. On. that point I give no opinion, because it is not necessary. But certainly if the parties choose to convey by a written instrument that shows what the intentions and rights of the parties are, and they shall not afterwards be permitted to refer to any other agreement. For if a person execute a bill of sale of goods without stamp, such an instrument cannot be received in evidence, and yet the vendee cannot resort to any parol evidence of the agreement. So here the title of the defend- ants being reduced to writing, they cannot refer to any other • Steele v. Mart, 4 B. & C. 272. ' Burditt v. Hunt, 25 Me. 419 ; S. C. » Moody V. Hamilton, 22 Fla. Zg8. 43 Am. Dec. 289. Bruce v. Slemp, 82 Va. 352. Biggs v. Piper, 86 Tenn. 589. 18 PAROL EVIDENCE. agreement, even though the written instrument be void by the act." Sec. 14. Collateral instruments. When the contents of a paper are not involved in the issue its execution may be proved as an independent fact, without production of the instrument. " In cases where the written communication or agreement be- tween the parties is collateral to the question in issue, it need not be produced." ' Sec. 15. Collateral instrument — form. When papers or documents are introduced collaterally in the trial of a cause, the purpose and object for which, and the reason why they were made in the particular form, may be explained by parol. " Such evidence," says Bradley, J., in Bank v. Kennedy, 17 Wall. 19, "does not in the least vary or contradict the drafts themselves. As the form of the drafts might confuse the jury, ■ the plaintiffs had a clear right to explain how they came to be made as they were. The fact in question was the loan."" Sec. 16. Rebuttal of equity or presumption. Parol evidence is admissible to " rebut an equity," or a presumption. Illustrations : As to rebut the presumption that an estate is situated where a contract to convey it is dated.' That a judg- ment against an indorser passes by assignment of a judgment against the principal.* That only one legacy was intended when two are given in the same will.* That a posted letter was received.' To sh6w the abandonment of an easement.' But not ' Exrs. of Shoenberger v. Hackman, 37 ' Mead v. Parker, 115 Mass. 413 ; S. C. Pa. St. 87, 15 Am. Rep. no. * I Greenl. Ev. § 89. - ^ Bank v. Fordyce, 9 Pa. St. 275. Bayne v. Stone, 4 Esp. 13. ' Hurst v. Beach, 5 Madd. 351. Tucker v. Welsh, 17 Mass. 160. ' Austin v. Holland, 69 N. V. 571 ; S. M'Faddenv. Kingsbury, 11 Wend. 667 C. 25 Am. Rep. 246. Southwick V. Stevens, 10 Johns. 443. Oregon Steamship Co. v. Otis, 100 N. Bank v. Kennedy, 17 Wall. 19. Y. 446 ; S. C. 53 Am. Rep. 221. Klein v. Russell, 19 Wall. 433, 464. Huntley v. Whittier, 105 Mass. 391 ; WoUner v. Lehman, 85 Ala. 274. S. C. 7 Am. Rep. 536. Daniels v. Smith, 130 N. Y. 696. ^ Fitzpatrick v. Boston & Me. R. Co., 84 ' i^aulcon V. Johnston, 102 N. C. 264 ; Me. 37. S. C. n Am. St. Rep. 737- PRIMARY RULES. 19 to rebut the presumption that a legacy to a creditor is not intended as payment.' Nor may a mortgage be rendered avail- able as security for future advances or responsibilities, by subse- quent parol agreement, as against a junior incumbrancer." Sec. 11. Public oflftce. The fact that a person holds and exercises a public office may be shown by parol, without producing his com- mission or written authority.^ Sec. 18. Legal relations. A legal relation between parties may be shown by third parties by parol, although the relation is established by a writing. Illustration : Thus the fact of partnership is provable by parol, although there are written articles.* So to prove a settlement, occupation and payment of rent may be shown by parol, although the contract is in writing. * Sec. 19. Descriptions of personalty. Vague descriptions of personal property may be made certain by parol' Illustrations : As in a chattel mortgage, the goods only de- scribed as "now in store occupied," etc' And live stock described only by number in a deed of trust.* Where there was a mortgage of " one portable saw-mill," evidence was admitted to show whether the mortgage covered a steam-engine used in con- nection with it.' So to explain the word " team." '" Sec. 30. Description partly incorrect. Where part of a description is false or incorrect, it may be rejected, if enough is left to identify the subject of the description. ' Reynolds v. Robinson, 82 N. Y. 103. Alderson v. Clay, i Stark, 327. Phillips V. McCombs, 53 N. Y. 494. » R. v. Holy Trinity, 7 B. & C. 611. ' Truscott V. King, 6 N. Y. 161. • Thomas Chat. Mortg., § iig. * Com. V. Kane, 108 Mass. 423. Galen v. Brown, 22 N. Y. 37. Colton V. Beardsley, 38 Barb. 2g. ' Burditt v. Hunt, 25 Me. 419 ; S. C. 43 Lucier v. Pierce, 60 N. H. 13. Am. Dec. 289. Colder v. Bressler, 105 111. 428. ' Barker v. Wheelip, 5 Humph. 329 ; S. Chapman Township v. Herrold, 58 Pa. C. 42 Am. Dec. 433. St. 106. ' Weber v. lUing, 66 Wis. 79. * Widdifield v. Widdifield, 2 Binney, 245 '" Thurber y. Minturn, 62 How. Pr. 27. Cutler V. Thomas, 25 Vt. 73. 20 PAROL EVIDENCE. This is the familiar maxim, falsa demoristratio non nocet. It ' has its most frequent application in respect to wills and deeds, and in the chapter on those subjects sufficient examples will be given for illustration of its force in all circumstances. Sec. 31. Loss of rights. The loss of certain rights acquired under a writing may be shown by parol. Illustration : As for example, the abandonment of an ease- ment. Sec. 33. Othei' writings. Other writings between the parties relative to the same sub- ject matter are admissible to explain or qualify the agreement before the court.' ■ I Greeul. Ev., § 283. Wilson v. Randall, 67 N. Y. 338. PARTIES. 21 CHAPTER III. Parties. Sec. 23. Identification. 24. Agency — unsealed contract — ^undisclosed principal — ratification. 25. Agency — agent bound. 26. Agency — sealed contract — undisclosed principal. 26. Agency — signing apparently as principal. Sec. 33. Identification. Parol evidence is admissible to identify the parties to a contract. " One of the first uses of parol evidence is to identify parties who have signed a contract." ' Illustrations: As where a grant was made to a married woman in her maiden name, to show that she was the person intended, that she was thus known to the grantor, and that there was no other bearing that name or claiming the title.'' To show that a note payable to " the president, directors and company " of a certain corporation was intended to be payable to the cor- poration.' To show that Elias Wicks named in a patent was the same person who afterwards conveyed the premises under the name of Eli Wicks.* To show that a grant to Alfred Brown was intended for Alfred Bowen.' To show, in a suit on a due-bill for " labor performed on cottage lot of railroad company," whether the labor was for the company or the president personally.' To show that a written order or letter of credit addressed to W. W. was intended for W. W. & Co.' To show the payee intended in a sealed promise to pay naming no payee.' To ascertain the ' Trueman v. Loder, II Ad. & Ell. 589. ' Bowen v. Slaughter, 92 Ga. 338; S. C. ' Scanlan v. Wright, 13 Pick. 523. 71 Am. Dec. 135. ^ Newport etc. Co. v. Starbird, 10 N. H. • Richmond, etc. R. Co. v. Snead, 19 123 ; S. C. 34 Am. Dec. 145. Gratt. 354; S. C. 100 Am. Dec. 670. To the same effect. Porter v. Pierce, 22 ' Wadsworth v. Allen, 8 Gratt. 174; S. N. H. 275 ; S. C. 55 Am. Dec. 151. C. 56 Am. Dec. 137. * Henderson v. Hackney, 23 Ga. 383; S. ' Barkley v. Tarrant, 20 S. C. 574; S. C. C. 68 Am, Dec. 529. 47 Am. Rep. 853. 22 PAROL EVIDENCE. payee in an "I. O. U."' To ascertain the bank intended in an obligation payable to "A. B., cashier."^ To show that a name in the place provided for the subscribing witness was that of the maker.^ So it might be shown that he signed with a fictitious name.* So where a contract purported to be made by A. and was signed "A., agent," to show that A. was contracting for his wife, and that the plaintiff knew it.* So to show that a non-negotiable note signed by B. as apparent agent is the obligation of A.° So to show which of two executors signing a release of a mortgage had the money.' So to fill a blank in an insurance policy with the name of the insured.^ So to show the cestui que trust of a deed to one as " trustee," without setting forth for whom.' So to show the real name of one who has signed an assumed name.^ And to show who was the buyer and who was the seller." So to show the real party in interest in an insurance policy.'^ Sec. 24. Agency — unsealed contract — undisclosed principal. In order to hold an undisclosed principal, extraneous evidence is admissible to show that the signer of an unsealed contract acted only as digent, although the con- tract does not name the real principal, and purports to have been made by the agent for himself. This evidence may be of an authorization by a principal, or where there was no original authority for the execution of the con- tract by the professing agent, parol evidence is competent to show that with knowledge of all the facts he expressly or silently acquiesced, or accepted the benefits. ^^ ' Kinney v. Flynn, 2 R. I. 319. » Burrows v. Turner, 24, Wend. 276; S. ' Baldwin v. Bank of Newburry, i Wall. C. 35 Am. Dec. 622. 234. ' Railroad Co. v. Durant, 95 U. S. 576. To the same effect, Musser v. Johnson, '" Richardson's case, L. R. 19 Eq. 588. 42 Mo. 74; S. C. 97 Am. Dec. 316. " Newell v. Radford, L. R. 3 C. P. 52. « Rape V. Westcott, 18 N. J. L. 245, '= Clinton v. Hope Ins. Co. 45 N. Y. 454. * Ibid. '3 2 Greenl. Ev. (13th ed.) § 65. ' Kennedy V. McKay, 14 Vroom, 288; S. Salmon Falls Manf. Co. v. Goddard, C. 39 Am. Rep. 581. 14 How. 453. » Webster v. Wray, 19 Neb. 558; S. C. Higgins v. Senior, 8 M. & W. 834.' 56 Am. Rep. 754. Waddill v. Sebree, — Va. — ; 14 S. E. ' McKim V. Aulbach, 130 Mass. 481; S. Rep. 849. C. 39 Am. Rep. 470. PARTIES. 23 Illustrations : i. In Trueman v. Loder, ii Ad. and Ell. 589, Lord Denman said : " If he," the principal, " is sued for the price, the contract is not varied by appearing to have been made by him in a name not his own." The same doctrine was reiter- ated in Ford V. Williams, 21 How. 287; Rose v. Hayden, 35 Kans. 106 ; S. C. 57 Am. Rep. 145 (the case of a resulting trust in lands); Story Agency, §§ i6oa-2'jo. In Cpleman v. First National Bank of Elmira, 53 N. Y. 388, it is held that a certificate of deposit made by the president of a banking house in his own name, and certifying a deposit " in this office," may be shown by parol to have been intended to evidence a deposit with the house. The court said: "Such proof does not contradict the written con- tract. It superadds a liability against the principal to that exist- ing against the agent." 2. So in Nicoll v. Burke, 78 N. Y. 580, parol evidence was approved, to show that an unsealed lease, signed " W. & E. A. C, as landlords," was executed by them as agents, and the principal thus empowered to recover rent upon it. " The principle is well settled," says the court, " that if the agent possesses the authority to make a written contract not under seal, and he makes it in his own name, whether he describes himself as agent or not, or whether the principal be known or unknown, his principal may be made liable, and will be entitled to sue thereon in all cases," etc. Shaw, C. J., in Huntington v. Knox, 7 Cush. 371, says : " The doctrine proceeds on the ground that the principal and the agent may each be bound ; the agent, because by his con- tract and promise he has expressly bound himself; and the prin- cipal, because it was a contract made by his authority and for his laccount."' Contrary authority : But this doctrine is denied in New Jersey, in Schenck v. Spring Lake Imp. Co., 47 N. J. Eq. 44. The court distinguished the leading case of Higgins v. Senior, 8 M. & W. 834, on the ground that " the suit was not against an unnamed principal, but against the person who appeared on the face of the instrument to be personally a contracting party. The plaintiff made no attempt to hold any other person liable. But the defendant attempted to escape liability by showing, by parol evidence, that in making the contract on which he was sued he ■ To the same effect : Edwards v. Gold- Nutt v. Humphrey, 32 Kans. 100. ing, 20 Vt. 30. Lerned v. Wannemacher, 9 Allen, 419. Calder v. Dobell, L. R. 6 C. P. 486. 24 PAROL EVIDENCE. acted to the knowledge of the plaintiff as the agent of a third person. This it was held he could not do. But the question before the court, it will be seen, was not whether a person not a party to the contract could be made a party by oral evidence, but whether a person who was a party could discharge himself from liability by showing, by parol proof, that in making the contract he, to the knowledge of the plaintiff, did not act for himself but for a third person." As to notes. In Haile v. Peirce, 32 Md. 327; S. C. 3 Am. Rep. 139, where a note was drawn, " we, the president and direc- tors " of a company, and signed by them with their official desig- nations, parol evidence was admitted to show that it was given and received as the note of the company. To this effect Bean v. Pioneer Min. Co., 66 Cal. 451 ; S. C. 56 Am. Rep. 106. But otherwise of a note phrased " I promise," and signed as treasurer of a parish.' And a bill of sale, in form a complete contract, may not be varied by proof of agency.' Sec. 35. But evidence that a contract, in the name of a prin- cipal, and signed apparently as agent, vras intended as the contract of the signer alone, is inadmissible.* Illustrations : i. In Artcher v. Douglass, 5 Denio, 509, an action on a bond of indemity to a sheriff for a levy, parol evidence was allowed for the purpose of showing that the defendants signed as sureties, and that the plaintiff in the execution had released the principal, and thus in law released them. The court observed : It is urged " that when both principal and surety unite in a joint obligation or agreement, which is silent as to the character of the parties, the surety cannot be allowed to show, at law, that he executed the obligation or entered into the agree- ment in that character. It must be admitted there are some authorities which countenance this position, and that, whether the obligation be created by a contract under a seal or without a seal. Pitm. on Pr. and Surety, 183, 184; People v. Jansen, 7 Johns. 337; Rees v. Berrington, 2 Ves. Jr. 542; Hunt v. U. S., I Gall. 33; Sprigg v. Bank of Mt. Pleasant, 10 Pet. ' Sturdivant v. Hull, 50 Me. 172; S. C. ' Heffron v. Pollard, 73 Tex. 96; S. C. 8 Am. Rep. 409. 15 Am. St. Rep. 764. ^ Bulwinkle v. Cramer, 27 S. C. 376; S. C. 13 Am. St. Rep. 645. PARTIES. 25 266; 14 id. 201; Ashbee v. Pidduck, i M. & W. 564; Pease V. Hirst, 10 B. & C. 122 ; Price v. Edmunds, id. 578. But the authorities on this point are not harmonious, for there ^re several cases in which a defendant, sued with others on a joint contract, was allowed to show by parol evidence that he was surety for a co-defendant, and thus let in a defense founded on that relation. Pain v. Packard, 13 Johns. 174 ; King v. Bald- win, 17 id. 394; Griffith v. Reed, 21 Wend. 502 ; Pitm. on Pr. and Surety, 183 ; Hall v. Wilcox, i M. & Rob. 58 ; Thompson v. Clubley, i M. & W. 212; Chit, on Bills, ed. of 1839, PP- 563. The reason for excluding such evidence at law, when it is conceded to be admissible in equity, is hardly to be gathered from the books, and perhaps there is none better than the one glanced at in Baker v. Briggs, 8 Pick. 128, that the surety having bound himself by a joint contract with his principal, shall not be allowed to set up a defense peculiar to himself as surety, and which in its nature is wholly unavailable to the principal in the contract. We shall not enter into these vexed questions, for they are not in the case before us. Here the principal was not a ■party to the obligation on which this action was brought," etc' 2. In Northwestern Distilling Co. v. Brant, 69 111. 658, S. C. 18 Am. Rep. 631, an agreement under seal, made by the presi- dent of a corporation, recited that it was made between " B. of the first part," and " E. L., president of the N. D. Company, of the second part." Throughout, the party of the second part was described as " he " or " him." It was subscribed " N. D. Co., by E. L., president." Held, upon parol proof, that it was a valid execution by the company, and it, and not L., was liable upon a covenant therein. Sec. 36. Agency — sealed instrument. A contract under seal made by an agent will not bind the principal unless made in the name of the principal, and extrinsic evidence is inadmissible to show the prin- cipal. "^ ' See Hubbard v. Gurney, 64 N. Y. 457. Providence v. Miller, n R, I. 272; S. Paul V. Rider, 58 N. H. 119. C. 23 Am. Rep. 453. Mansfield V. Edwards, 136 Mass. 15. Kiersted v. Orange, etc., R. Co., 69 Graves v. Johnson, 48 Conn. 160; S. N. Y. 343. C. 40 Am. Rep. 162. *• Schaefer v. Henkel, 75 N. Y. 378. * Briggs V. Partridge, 64 N. Y. 357. Jackson v. Miller, 6 Wend. 228. 2G PAROL EVIDENCE. Illustrations :. This point was elaborately discussed in Briggs V. Partridge, 64 N. Y. 357, S. C. 21 Am. Rep. 617, where Andrews, J., observed : " Those persons only can be sued on an indenture who are named as parties to it, and an action will not lie against/ one person on a covenant which purports to have been made by another. Beckham v. Drake, 9 M. & W. 79; Spencer v. Field, 10 Wend. 88; Townsend v. Hubbard, 4 HUl, 351. In the case last cited, it was held that where an agent, duly authorized to enter into a sealed contract for the sale of the land of his principals, had entered into a contract under his own name and seal, intending to execute the authority conferred upon him, the principals could not treat the covenants made by the agents as theirs, although it clearly appeared in the body of the contract that the stipulations were intended to be between the principals and purchasers, and not between the vendees and the agent. The plaintiffs in that case were the owners of the land embraced in the contract, aud brought their action in covenant to enforce the covenant of the vendees to pay the purchase money, and the court decided that there was no reciprocal covenant on the part of the vendors to sell, and that for want of mutuality in the agreement the action could not be maintained. It is clear, that unless the plaintiff can pass by the persons with whom he con- tracted, and treat the contract as the simple contract of the defendant, for whom it now appears that Hurlburd was acting, this action must fail. The plaintiff invokes in his behalf the doctrine that must now be deemed to be the settled law of this court, and which is supported by high authority elsewhere, that a principal may be charged upon a written parol executory contract entered into by an agent in his own name, within his authority, although the name of the principal does not appear in the instrument, and was not disclosed, and the party dealing with the agent supposed that he was acting for himself, and this doctrine obtains as well in respect to contracts which are required to be in writing as to those where a writing is not essential to their validity. Higgins V. Senior, 8 M. & W. 834; Trueman v. Loder, ii Ad. and Ellis, 594; Dykers v. Townsend, 24 N. Y. 61 ; Coleman v. First Nat. Bank of Elmira, 53 id. 393; Ford v. Williams, 21 How. (U. S.) 289; Huntington v. Knox, 7 Cush. 371 ; Eastern R. Co. v. Bene-, diet, 5 Gray, 566; Hubbert v. Borden, 6 Whart. 91 ; Browning v. PARTJES. 27 Provincial Ins. Co., L. R., 5 P. C. 263 ; Calder v. Dobell, L. R., 6 C. P. 486; Story on Agency, sees. 148, 160. " It is doubtless somewhat difficult to reconcile the doctrine here stated with the rule that parol evidence is inadmissible to change, enlarge or vary a written- contract, and the argument upon which it is supported savors of sublety and refinement. In some of the earlier cases the doctrine that a written contract of the agent could be enforced against the principal was stated with the qualification that it applied, when it could be collected from the whole instrument, that the intention was to bind the principal. But it will appear, from an examination of the cases cited, that this qualification is no longer regarded as an essential part of the doctrine. Whatever ground there may have been originally to question the legal soundness of the doctrine referred to, it is now too firmly established to be overthrown, and I am of opinion that the practical effect of the rule as now declared is to promote justice and fair dealing. There is a well-recognized exception to the rule in the case of notes and bills of exchange, resting upon the law merchant. Persons dealing with negotiable instruments are presumed'to take them on the credit of the parties whose names appear upon them ; and a person not a party cannot be charged upon proof that the ostensible party signed or indorsed as his agent. " That Hurlburd had oral authority from the defendant to enter into a contract for the purchase of the land, and that he was acting for the defendant in making it is admitted, and if the contract had been a simple contract, and not a specialty, the defendant would, I think, have been bound by it within the authorities cited. ******** "We return then to the question originally stated. Can a contract under seal, made by an agent in his own name, for the purchase of land, be enforced as the simple contract of the real principal when he shall be discovered? No authority for this broad proposition has been cited. There are cases which hold that when a sealed contract has been executed in such form, that it is, in law, the contract of the agent and not of the principal, but if the principal's interest in the contract appears upon its face, and he has received the benefit of performance by the other party and has ratified and confirmed it by acts in pais, and the contract is one which would have been valid without a seal, the principal may be made liable in assumpsit upon the promise contained in 28 PAROL EVIDENCE. the instrument, which may be resorted to to ascertain the terms of the agreement. Randall v. Van Vechten, 19 Johns. 60 ; Dubois V. Del. and Hud. Canal Co., 4 Wend. 285 ; Lawrence v. Taylor, 5 Hill, 107 ; see, also, Evans v. Wells, 22 Wend. 324 ; Worrall v. Munn, 5 N. Y. 229 ; Story on Agency, sec. 277; i Am. Lead. Cas. 735, note. "The plaintiffs agreement in this ease was with Hurlburd and not with the defendant. The plaintiff has recourse against Hurl- burd on his covenant, which was the only remedy which he contemplated when the agreement was made. No ratification of the contract by the defendant is shown. To change from a specialty to a simple contract, in order to charge the defendant, is to make a different contract from the one the parties intended. A seal has lost most of its former significance, but the distinction between specialties and simple contracts is not obliterated. A seal is still evidence, though not conclusive, of a consideration. The rule of limitation in respect to the two classes of obligations is not the same. We find no authority for the proposition that a contract under seal may be turned into the simple contract of a person not in any way appearing on its face to be a party to or interested in it, on proof dehors the instrument, that the nominal party was acting as the agent of another, and especially in the absence of any proof that the alleged principal has received any benefit from it, or has in any way ratified it, and we do not feel at liberty to extend the doctrine applied to simple contracts executed by an agent for an unnamed principal so as to embrace this case. The general rule is declared by Shaw, C. J. in Hun- tington V. Knox, 7 Cush. 374: Where a contract is made by deed,, under seal, on technical grounds, no one but a party to the deed is liable to be sued upon it, and therefore if made by an attorney or agent, it must be made in j;he name of the principal in order that he may be a party, because otherwise he is not bound by it." Sec. 37. Agency — apparent principal. A contract binds the signer wlien he subscribes appar- ently as principal, and he may not introduce parol proof of his agency to evade his liability. Illustrations : In Bulwinkle v. Cramer, 27 S. C. 376, this doc- trine was laid down, the court observing : " But it is insisted, that while this ma,y be so as to what may be called the terms of the PARTIES. 29 paper — the quality of the article, consideration, time of payment, etc. — yet parol testimony was admissible tending to show that the defendants Cramer & Blohme, in selling the corn, committed the agreement to writing, taking the note, and realizing upon it in their own name, were acting, not as the papers represented, but as agents of a house in Baltimore, and that the plaintiffs contracted with said house through Cramer Sz; Blohme as their agents. Is not the signature to a contract in writing, showing who made it, and in, what character, a part, and a very important part, of that contract? We are unable to see any good reason why this part should not be protected from alteration or addition, as well as any other part of the contract in writing. It seems to us that when the defendant signed the contract in their own names that became a part of it, and could not be altered by parol, so as to add to the signature, ' as agents of Robert Turner & Son, of Bal- timore.' ' A person contracting as agent will be personally liable, whether he is known to be an agent or not, in all cases where he makes the contract in his own name. * * * If an agent selling goods as bought of him (the agent) he would be personally .liable for a failure to deliver the goods.' Story Ag. 269. See also id. 219, Benj. Sales, § 219; Higgins v. Senior, 8 Mees. & W. 834 ; Nash v. Towne, 5 Wall. 703, and Jones v. Littledale, 6 Ad. & EI. 486, in which last case cited. Lord Chief Justice Denman said : 'There is no doubt that evidence is admissible on behalf of one, of the contracting parties to show that the other was agent only, though contracting in his own name, and so fix the real principal ; but it is clear, that if the agent contracts in such a form as to make himself personally responsible, he cannot after- ward, whether his principal were or were not known at the time of the contract, relieve himself from that responsibility. In this case there is no contract signed by the sellers, so as to satisfy the statute of frauds, until the invoice, by which the defendants rep- resent themselves to be the sellers ; and we think they are conclu- sively bound by that representation. Their object in so represent- ing was, as appeared by the evidence of custom, to secure the passing of the money through their handf^ and to prevent its being paid to their principals ; but in so doing they have made themselves responsible,' etc. In the case from Wallace, Mr. Justice Clifford said : ' Parol evidence can never be admitted for the purpose of exonerating an agent who has entered into a written contract in which he appears ^s principal, even though he 30 PAROL EVIDENCE. should propose to show, if allowed, that he disclosed his agency, and mentioned the name of his principal, at the time the con- tract was executed. Where a simple contract other than a bill or note is made by an agent, the principal whom he represents may in general maintain an action upon it in his own name, and parol evidence is admissible, although the contract is in writing, to show that the person named in the contract was an agent, and that he was acting for his principal. ' Such evidence,' says Baron Parke, 'does not deny that the contract binds those whom on its face it purports to bind, but shows that it also binds another ; ' and that principle has been fully adopted by this court ' — citing numerous authorities." " Parol evidence can never be admitted for the purpose of exonerating an agent who has entered into a written contract in which he appears as principal, even though he should propose to show, if allowed, that he disclosed his agency and mentioned the name of his principal at the time the contract was executed." ' ' Nash V. Towne, 5 Wall. 689. STRANGJJKS. 31 CHAPTER IV. Strangers. Sec. 28. Inapplicability of general rule to strangers. 29. Rule as to best evidence. Sec. 38. Exclusion binds only parties and privies. The rule excluding extrinsic evidence in the construc- tion of written instruments is applicable only to contro- versies between the parties to the instrument and their privies, and does not apply to controversies between third persons, or between one of the parties and a third person. This doctrine is recognized by the leading elementary writers on evidence. Thus Greenleaf says (Ev. § 279), "The rule under consideration is applied only (in suits) between the parties to the instrument, as they alone are to blame if the writing contains what was not intended, or omits that which it should have con- tained. It cannot affect third persons, who, if it were otherwise, might be prejudiced by things recited in the writings contrary to the truth, through the ignorance, carelessness or fraud of the parties, and who therefore ought not to be precluded from prov- ing the truth, however contradictory to the written statements of others." In Lee v. Adsit, 37 N. Y. 49, the court said : " The rule that parol extrinsic evidence shall not be received to contradict or vary a contract which is in writing, applies only in controversies between the parties, promisor and promisee, in such contract. It is founded upon the just and rational presumption, that the par- ties have made all the stipulations for the protection of their respective interests, on which they were agreed, and have, in lan- guage chosen by themselves, placed such stipulations in a more certain form than mere oral discourse, for the purpose of exclud- ing all such loose and uncertain media of proof The writing, is not conclusive as between one of the contracting parties and a third person. This doctrine is asserted, in general terms, in a 32 PAROL EVIDENCE. multitude of authorities ; but in many instances it is accompanied by remarks from which it might be contended that the privilege of explaining the written document was not accorded to him wha was a party to it, but only to his adversary, i Greenl. Ev., sec. 279; New Berlin v. Norwich, 10 Johns. 230; Evans v. Wells, 22 Wend. 345. But it is not so confined. According to Co. Litt. 352a, -every estoppel ought to be reciprocal — that is, to bind both parties ; and this is the reason that regularly, a stranger shall neither take advantage of nor be bound by the estoppel.' To this effect see Gaunt v. Wainman, 3 Bing. N. C. 69; Jewell V. Harrington, 19 Wend., 472 ; Sparrow v. Kingman, i N. Y. 246,. 253 ; Cattle v. Snyder, 10 Mo. 769. " In Reynolds v. Magness, i Ired. 30, 31, after stating the gen- eral rule, and that it applies only as between the parties and not to strangers, Judge Gaston says: 'They (the strangers) are at liberty to show that the written instrument does not disclose the full or true character of the transaction. And if they be thus at liberty, when contending ^ith a party to the transaction, he must be equally free, when contending with them. Both must be bound by this conventional la,w, or neither. * * * Estoppels must be mutual.' " In Walton v. Cronly, 14 Wend. 67, the right of a party to a deed to explain it, as against a third person, was maintained,, though such third person was a privy in estate. Besides, although written contracts may not be varied by extrinsic parol evidence,^ in an ordinary Action between the parties, yet when as sometimes happens, there is a mistake in the writing, a party affected thereby is not remediless. By an action in equity, he may have the writing reformed, and made to express the actual intent. In such an action, it is not necessary nor allowable, nor possible, to make all the world parties; those between whom' the contract was made are alone heard. And of course if they happen to be both honest and intelligent, no suit for reformation can ever be requisite. This may suffice to illustrate the position now assumed. " Neither are the terms of a written contract conclusive as to the shares or proportions in which a set of parties on one side of the contract are interested in its fruits, as between themselves. Such questions do not usually enter into the consideration of those who settle the forms of written contracts. Each party, in framing the contract, considers only what, by its terms, he may STRANGERS. 33 exact from the other, and what the latter may thereby exact from him. The parties of the first part in a contract may have no joint or mutual interest in the subject-matter; one may be merely the agent, clerk or servant of the other ; yet the paper would warrant, /nw« /««>, the supposal of an equal interest. In an action on the contract, against the other party, no question of this sort can arise. But surely, in a controversy between the parties of the first part, the paper is not conclusive and irrefrag- able evidence of a mutual and equal interest in the benefits of the contract. If all the consignors had been expressly named as insured parties, the last-mentioned proposition would have full play, in a controversy between them, concerning the distribution of the insurance money. I have already shown that as between them, the question would be entirely open." Illjistrations ; i. In Overseers of New Berlin v. Overseers o| Norwich, lo Johns. 229 (1813), the question was the settkmeat of a pauper. The court says : " The purchase of an estate in a town will not gain a settlement for any longer time than -the purchaser inhabits such estate, unless the consideration of the purchase amounts to $75 bona fide paid. The overseers of the poor of the town of New Berlin offered to prove, that although the pauper had purchased a lot in that town for the consideration of $250, and had mortgaged the lot back to secure the payment of $200, yet in fact he had not paid any part of the consideration, and the evidence was rejected. The overseers of New Berlin were clearly entitled to show this fact, and were not estopped from showing it by the deed or mortgage, to which they were not parties. Such a conclusion would be unjust, by enabling a person at any time to procure a settlement by a purchase without pay- ment, and so to defeat the provision in the act. It is a general rule that parties and privies are estopped from contradicting a written agreement by parol proof, but the rule does not extend to strangers, who have an interest in investigating and knowing the real truth of the case." The principle of our proposition is thus clearly recognized, although it seems that the evidence offered was competent even between the parties, as explanatory only of the consideration. 2. In Stackpole v. Arnold, 11 Mass. 27 (1814), referred to by Senator Verplanck in Evans v. Wells, infra, the declaration averred that the defendant made the several promissory notes declared on, by Cook & Foster in one instance, and by Zebedee 34 PAROL EVIDENCE. Cook in the others, as his agent ; the notes were signed simply Cook & Foster, and Zebedee Cook; no hint of agency appeared in the notes; evidence that^ they were really given for the defendant having been admitted, and a recovery had against the defendant, a new trial was granted on the ground that such evi- dence was improper. This is the leading case on the doctrine which it lays down, but there seems to be nothing in it inconsistent with the doctrine of our proposition. The extrinsic evidence was not introduced on the theory that the controversy was between third parties, or between one of the parties to the note and a stranger ; but was introduced for the purpose of making liable, as a party to the note, one who did not appear on its face to be a party to it. The effect of the extrinsic evidence was to create a contract as against •another party than the party apparently bound. The court in effect held that a prpmissory note cannot be constructed by parol, in the absence of any ambiguity which parol evidence would be competent, in the fulfillment of its true office, to explain. 3. This principle was recognized, although perhaps not neces- sarily involved, in Whitbeck v. Whitbeck, 9 Cowen 270; S. C. 18 Am. Dec. 503 (1828). , " Parol evidence to show the true consid- eration of the deed or assignment from Peter to John Whitbeck, was properly received. The plaintiff was not a party, nor, in strictness, I apprehend, a privy to that conveyance ; and the rule which prohibits the contradiction by parol of what is expressed in a deed, even if applicable to the consideration, I understand is confined to the parties or privies to the deed. The rule is founded on the principle that a party is estopped from impeach- ing or contradicting his deed. But the rule does not apply to the acknowledgment of consideration paid, in a deed, even as between the parties." 4. The rule was again recognized in Krider v. Lafferty, i Whart. 314(1835), in which Kennedy, J., remarks: "It cannot affect third persons, who, if it were otherwise, might be prejudiced by things recited in the writings, contrary to the truth, through the ignorance, carelessness or fraud of the parties; and who therefore ought not to be precluded from proving the truth, however contradictory to the written instruments of others." 5. In Johnson v. Blackman, 11 Conn. 342 (1836), A., the payee of a note made jointly and severally by C. and D., assigned it to B., with this indorsement : " I assign the within note to STRANGERS 35 B. ; " and received another note of the same amount from B., who was executor of C. In an action on the former note against D., it was claimed that this note was paid by the note of B. ; and ^idence that the indorsement was not made until after the note in question was thus paid, although, at the same interview, was held competent, on the principle laid down in our proposition, the court citing Reading v. Weston, and Overseers of New Berlin V. Overseers of Norwich. ' ^ 6. In Evans v. Wells, 22 Wend. 345 (1839), i" the court of errors, Senator Verplanck remarks: " The written instrument is held to merge all former conversations, negotiations, and explan- ations between the parties privy to it, but it should not, and does not, cpntrol the rights of either party against another person responsible on the same account, with whom no written agree- ment has been directly made. The writing is to such third person a negotiation inter alios, and can only be received as infer- ential evidence touching his liabilities, not as exclusive of all other testimony. The law will not permit parties to contradict, by external evidence, their 07t/n written contract. This is a sound principle of legal policy, but surely it does not follow from this, that the written contract between A. and B., which is conclusive as to them, must be of necessity so as to the proof of any rights or claims of A. against C, merely because they grow out of the same business. Numerous as are the authorities and decisions for the exclusion of parol evidence, oiifered in order to discharge the liability of persons bound by their own written agreement, I have found but one (11 Mass. 27), which extends the doctrine so as to make, the written evidence of one man's liability on a con- tract, exclusive of all parol testimony of the liability of another on the same matter." 7. Woodman v. Eastman, 10 N. H. 359 (1839), was an action against the indorser of a promissory note, signed by John Averill, dated July 25, 1835, payable in one year. On the 25th of August, 1836, the plaintiff received from Averill, the maker, a note and draft, the note being taken in part payment, and agreed in writing that the draft, when paid — it having ninety days to run — should be in satisfaction of the first note, and that he would then deliver it up to Averill ; " otherwise the said note to remain in full force." The defendant introduced, under objection, the testimony of Averill, as to the conversations which took place between Averill and the plaintiff at the time of the execution of the agreement, 36 PAROL EVIDENCE, to the effect that the plaintiff agreed not to attempt to enforce the note in suit until the draft fell due. In respect to this the court say, at page 365 : " Nor is the evidence of Averill objec- tionable because it goes to prove an agreement which is not con- tained in the written receipt or agreement signed by the plaintiff, when he received the note and draft on the 25th of August. So far as it shows an agreement for delay, it does not contradict any- thing in that instrument, Ijut is entirely consistent with it. But if it had contradicted it, the defendant, would not be precluded, by any writing between the plaintiff and Averill, from proving all the terms of the agreement. The rule that evidence cannot be admitted to contradict or add to the terms of a written instru- ment, has no application to third persons who are not parties to the written agreement." 8. Reynolds v. Magness, 2 Ired. 30 {1841), was an action against Benjamin Magness' executors to recover money paid as bail for Samuel Magness, against which Benjamin had indemnified the plaintiff. For the purpose of showing that the plaintiff had paid these moneys, he produced a bill of sale of certain negroes, and a deed of a tract of land executed to the surviving adminis- trator of William Magness, which the parties said was to pay up an execution for which the present plaintiff was bound as bail for Samuel Magness, and the plaintiff said it was to enable him to recover the amount back from his principal, Samuel Magness. For the purpose of avoiding the effect of the statute of limitations, the plaintiff offered to prove that said deed and bill were only a mortgage. The defendant objected that the plaintiff was estopped. Judge Gaston remarked ; ' It is true, that if a controversy had arisen between the parties to these conveyances, and the bargainee had denied the paroj agreement, the plaintiff would have found serious, perhaps insuperable, difficulty in establishing it. The rule of evidence, that where the parties to a contract have reduced their agreement to Writing, parol evidence shall not be received to alter or contradict the written instrument, applies to contro- versies between the parties, and those claiming under them. The parties have constituted the written agreement to be the authentic memorial of their contract, and, because of this compact, the instrument must be taken, as between them, to speak the truth, and the whole truth, in relation to its subject-matter. But stran- gers have not assented to this compact, and therefore are not bound by it. Where their rights are concerned, they are at STRANGERS. 37 liberty to show that the written instrument does «iot disclose the full or true character of the transaction. And if they be thus at liberty, when contending with a party to the transaction, he must be equally free when contending with them. Both must be bound by this conventional law or neither." 9. Fuller V. Acker, i Hill, 473 (1841), was an action of replevin for wrongfully taking household furniture, claimed by the plaintiff under a mortgage from William Wagstaff. The mortgage was dated March 11, 1837, and was conditioned to pay by "the tenth of March, one thousand eight hundred and thirty." It had been renewed for three years. The defendant, who was sheriff, had seized the property under execution against Wagstaff. On the trial, Wagstaff was allowed to testify that in drawing the mort- gage an error was committed, the time of payment being intended to be March 10, 1838, the word "eight" being omitted by mistake. On review, the court held the evidence properly admitted, Cowen, J., remarking, " on questions of fraud like this, which is inter alios, the objection of an estoppel does not apply, as it would if the litigation were between the immediate parties." 10. In Taylor v. Baldwin, 10 Barb. 587 (1850), it was held, that although, at a trial at law, the parties to a deed could not vary its terms by showing that it was intended as a mortgage, yet the rule was different as to strangers; and that a stranger "was not precluded from inquiring into the true character of the trans- action, provided he has an interest in the subject-matter, which may be injuriously, if not fraudulently, affected if the truth can not be shown. * * * To persons thus situated, the law has, in certain cases, allowed the right to show, by parol, the true character of a transaction in which the parties and their privies would have been estopped by their deed or other written instru- ment. The exception in favor of strangers, is to prevent a fraud- ulent operation of the instrument upon their rights. Reading v. Weston, 8 Conn. 121. This is the extent to which the authorities relied upon by the counsel go, and I have seen none which extends the principle beyond this." 11. In Furbush v. Goodwin, 25 N. H. 446 (1852), parol evi- dence was received to contradict an instrument claimed on one hand to be a contract, and on the other to be a mere receipt. The court held such evidence admissible in either event. They said : " But if it might be supposed that the receipt in question was in truth a contract between the parties to it, and as such, as 38 PAROL EVIDENCE. between them,«could not admit of the explanation offered in this case, still as it is not a contract between the parties to this suit, upon that ground it was admissible. The rule excluding explana- tory parol evidence applies only in a case where the contract to be explained is between the parties to the suit, and hot where it is between other parties." 1 2. Eaton V. Alger, 2 Keyes, 41 , 45 ( 1 865), C. transferred to E. a note payable to bearer, drawn by J. P. A., and indorseid by W. S.' A., and took E.'s receipt for it, agreeing " to account for the same on demand." In an action by E. against the maker and indorser, the receipt was introduced as evidence to establish the position that title to the note was not in the plaintiff, and that it was a contract of bailment, and testimony both of C. and E. offered to prove the nature of the contract and the consideration of the transfer was excluded. On appeal, this was held erroneous. The court say : " The general rule is, that estoppels are mutual. Parties to an instrument are mutually precluded from varying it by parol ; but the rule does not apply to persons who are neither parties nor privies to the contract, and whose rights are not affected thereby. It cannot be doubted, that, if the rights of the defendants were injuriously affected by the receipt^ they could contradict it by parol ; and, therefore, the parties to the receipt are not estopped as to them, and in an action with' them may show the real agreement by parol." 13. Reading v. Weston, 8 Conn. 117 (1830), at first sight seems to maintain a doctrine in conflict with our proposition) but on closer examination, it will be seen to be in harmony with it. The action was brought by the inhabitants of the town of Reading against the inhabitants of the town of Weston for the support of the wife and rtiinor children of Samuel Darling. The paupers derived their settlement from Lucy Darling, the mother of Samuel Darling. The defendants claimed that in March, 1808, she became the owner of a piece of land in the town of Reading, of the value of $800 by deed, absolute on its face, from Joseph Burr. Simultaneously with the delivery of the deed, she executed to Burr a writing, agreeing, if within three years he should pay her $800 and interest, to surrender the deed ; otherwise he forfeited all claim. Evidence of this agreement was offered, but rejected. Verdict for defendants. A new trial was denied. Chief Justice Hosmer says : " Undoubtedly there have be^n determinations, some of which have been cited, proving that a STRANGERS. 39 stranger is not estopped by a written agreement, but that he may produce parol testimony to prevent a fraudulent operation' of it upon his interests. The King v. Scammonden, 3 T. R. 474 ; New- Berlin V. Norwich, 10 Johns. 229; 3 Stark. Ev. 1018, 1052. But this principle has no application to the present case. The plaintiffs have not suggested that there was any fraud contem- plated and practiced on them. The pretense would have been .yery strange, unless it were followed up by explicit testimony to this effect. The inhabitancy of 'Lucy Dsirlmg, prima facte, with. property sufficient to purchase a farm of the value of $800, was a benefit to the plaintiffs, and not a prejudice ; and all our towns "would be pleased in this manner to extend their population." It will thus be seen that the principle of our proposition was not •denied, but it was held not applicable to this particular case. 14. Tyler V. Taylor, 8 Barb. 585 (1850), on a cursory glance might also be deemed in conflict with the proposition ; the syllabus conveys that idea ; but in reality it is not. The dispute was between the assignee of one chattel mortgagee and the assignees of other mortgagees in the same mortgage, as to the ■ownership of some of the mortgaged property. The parties to the suit were thus not strangers, but privies to the _ original parties. Parol evidence offered by the plaintiff to show that the defendant's assignment was intended only as a release was properly excluded. Viewed in the light of these facts, there is nothing in the opinion of the court in conflict with our doctrine: " I apprehend that the principle of those cases cannot be applied to this, without also offering to show that the assignment was, by fraud, made to read differently from the actual agreement between the parties, to accomplish some covert purpose. It cannot be that when I have purchased a mortgage, and the assignment expresses the contract of purchase, it may be shown by parol that the assignment was intended merely to discharge the mortgage, without showing some other facts than the mere error in the assignment, and without any offer to show that the error was fraudulent. Such a doctrine would be alarming, and would leave • the holders of such securities at the mercy of their debtors. In this case the offer was not made by the plaintiff claiming to be a stranger" etc. That is to say, the writing was binding on the plaintiff — because he was not a stranger — unless it could be shown to be fraudulent. 15. In McMaster v. Ins. Co. of North America, 55 N. Y. 222 ; 40 PAROL EVIDENCE. S. C. 14 Am. Rep. 239 (1873), it was held that in a contention between a party to an instrument and a stranger to it, either may- give parol evidence differing from the contents of the instrument. The court recognized the rule that the instrument is only con- clusive between the parties and their privies, that " strangers not having come into this agreement are uot bound by it," and as the stranger may contradict it, " so the party to it is not to be at a disadvantage with his opponent, and he too in such a case may give the same kind of testimony." ' The rule as to the right of strangers to the contract, to vary it by parol, must be limited to rights independent of the instru- ment. As to rights which originate in the relation established by the instrument the ordinary rule must apply. Thus for example, in Wodock v. Robinson, Pennsylvania Supreme Court,^ it was held that the wife of a tenant, who has engaged in the lease to keep the demised premises in repair, cannot in an action against the landlord for personal injuries occasioned by the falling- of a floor,- prove a parol agreement contemporaneous with the lease, for repairs by the lessor. The wife could have no right springing out of the occupancy except as founded on the lease,. and her right must be bounded by the provisions of the lease^ which in this respect being conclusive against the husband were conclusive against her. Sec. 39. Writing still best evidence. But even in respect to strangers to the instrument, the writing itself is the best evidence, and must if possible •■ To the same effect : Hetryford v. Davis, 102 U. S. 235. Pope V. O'Hara, 48 N. Y. 446. Nal. Car, etc. , Builder v. Cyclone, etc. ^ Coleman V. Pike County, 83 Ala. 326; Co., — Minn. — ; 51 N. W. Rep. S. C. 3 Am. St. Rep. 746. 657. Lowell Manf. Co. v. Safeguard Fire Grove v. Rentch, 26 Md. 378. In the Ins. Co., 88 N. Y. 591. latter case it was held that a stranger Brown v. Thurber, 77 N. Y. 613. may contradict the writing But in Spooner v. Cummings, 151 Mass. 313. ' Henderson v. Mayhew, 2 Gill, 393 ; . Condit V. Cowdrey, 123 N. Y. 463. s. C. 41 Am. Dec. 434. k was held Dempsey v. Kipp, 61 N. Y. 465. that a party may not show as against Bruce v. Roper Lumber Co., 87 Va. a stranger that a bill of sale is a. 381 ; S. C. 24 Am. St. Rep. 657. mortgage. Manf. Co. v. Wire Fence, 109 111. 71. Buxton v. Beal, — Minn. — ; 51 N. Tyson v. Post, 108 N. Y. 217 ; S. C. 2 W. Rep. 918. Am. St. Rep. 409. Surles v. State, — Ga. — ; 15 S. E. Burns v. Thompson, 91 Ind. 146. Rep. 38. Hussman v. Wilke, 50 Cal. 250. » 24 Atl. Rep. 73. STRANGERS. 41 be produced, and if producible, parol evidence of its con- tents is not admissible. Illustrations : Thus in Clow v. Brown, — Ind. — , the court said : " The question of fatt chiefly controverted on the trial of the cause related to the payment of the capital stock of the company, the contention of the plaintiffs being that no part of the Capital stock had been paid into the treasury. The plaintiffs, to establish this proposition, placed the secretary of the company upon the stand, who testified that he held $7,000 of the stock, par value, which he obtained from Messrs. Comegys & Lewis, being a part of the $197,000 of the stock issued to them by the company. The wit- ness was then asked this question : ' What was that stock issued to Comegys & Lewis for?' The defendants objected to the wit- ness answering this question, on the ground that the considera- tion paid by Comegys & Lewis for the stock was evidenced by a^ written contract, which contract was exhibited to and identified by the witness. The court sustained the objection, and excep- tions were noted. We are of the opinion that the court did not err in this ruling. If the stock was issued to Comegys & Lewis, in pursuance of a written contract executed between them and the company, this writing was certainly the best evidence. No citation of authorities or argument is necessary to establish the truth of this proposition as a general rule of evidence. The arrangement by which this stock was issued to Comegys & Lewis was not a merely collateral matter, incidentally involved, but was an essential element in the plaintiffs' case. If the stock was in fact turned over to Comegys & Lewis in pursuance of the con- tract, the parol evidence proposed to be elicited by the witness upon the stand must necessarily have consisted of his recollec- tion of the terms and conditions of that contract, and be subject to all the imperfections of the memory and liability to mistakes in reciting the terms of a written contract. The fact that the plaintiffs were not parties to the contract does not altei the rule of law that the writing was the best evidence of its own contents, terms, and conditions. The admissibility of the written contract as the best evidence, as a rule of evidence, is one thing, and the force to be given to that evidence when admitted is quite another. What we decide is that the written contract was the best evidence of the pnrpose and circumstances under which the stock was issued, and not that the plaintiffs were concluded by a contract to which they were not parties. The case of Burns v. Thompson, 42 PAROL EVIDENCE. 91 Ind. 146, is not in conflict with this ruling. All that was held in that case was that while a dispositive instrument could not, as between parties to it, be waived by parol, one not a party to it might impeach it, as being a means adopted by the opposite party to defraud him." CPNSIDERATION. 43 CHAPTER V. Consideration. Sec. 29. Failure of — unsealed instruments. 30. Sealed instruments. 31. Real consideration. Sec. 39. Failure of consideration — unsealed instru- ments. Parol evidence is admissible to show a failure or orig- inal lack of consideration of an unsealed contract, as between the parties.' Reasons of the rule: If the inducement to the making of the contract has failed, and thus the reason of its being has ceased to €xist, the law will not hold the other party to a performance without benefit and to his loss and damage, but will allow him to show the subsequent change of circumstances. If there was originally no consideration there was no contract, and that there was no contract may always be shown. The evidence is also admitted on the ground that the recital of consideration is a mere receipt, and thus open to parol contradiction. Exceptions : But a purchaser of mortgaged chattels may not show that the mortgagee had not fulfilled his contract, which was the consideration of the mortgage.' So sureties on a lease may not show a breach of a collateral agreement of the landlord with the tenant.' ^ Stackpole v. Arnold, 11 Mass. 27; S. De»n v. Mason, 4 Conn. 428. C. 6 Am. Dec. 150. Waymack v. Heilman, 26 Ark. 449. Amherst Academy v. Cowls, 6 Pick. ' Anthony v. Harrison, 14 Hun, 198; S. 427. C. 74 N. Y. 613. Folsora V. Mussey, 8 Greenl. 400. Eaton v. Eaton, 35 N. J. L. 290. •Gt. West. Ins. Co. v. Rees, 29 111. 272. 'Moore v. Prentiss Tool Co., N. Y. Erwin v. Saunders, i Cow. 249. Super. 39 St. Rep. 361. I Greenl. Ev. § 284. ' Lasher v. Williamson, 55 N. Y. 6ig. Meyer v. Casey, 57 Miss. 615. 44 PAROL EVIDENCE. Sec. 30. Sealed instruments. At ancient common law a seal conclusively imported a consideration, but this rule is relaxed by modern legisla- tion, in some States. Illustrations : Thus a mortgage on lartds may be shown to have been without consideration, under a statute making the recital only presumptive evidence of consideration.' I^ule in cases of voluntary specialty : In Aller v. Aller, 40 N. J. L. 446, it was held that although the statute makes a seal only presumptive evidence of consideration, yet an obligor cannot avoid his bond on the ground that it was voluntary, because " the parties intended and understood that there should be no consid- eration," and upon the theory that the statute was only intended to defeat fraud and illegality. The statute introduces a new rule of evidence, said the court, but does not take from the seal its effect of establishing a contract according to the intention of the parties. Sec 31. Real consideration. Parol evidence is admissible to show the real considera- tion and purpose, although it contradicts the recital; and to contradict the acknowledgment of payment ; but not to cut down the consideration, except in an action to correct a mistake; nor to defeat the instrument.^ " The rule which excludes parol testimony to contradict or . vary a written instrument, has reference to the language used by the parties. That cannot be qualified or varied from its natural import, but must speak for itself. The rule does not forbid an inquiry into the object of the parties in executing or receiving the instrument." ' ' Parkhurst V. Higgins, 3*8 Hun, 113. Anthony v. Harrison, 74 N. Y. 613. Aller V. Aller, 40 N. J. L. 446. Comstock V. Breed, 12 CaL 288. , Steinhauer v. Witman, 1 S. & R. 438. ' M'Crea v. Purmort, 16 Wend. 460; S. C. 30 Am. Dec. 103. ' Goodspeed v. Fuller, 46 Me. 141 ; S. C. 71 Am. Dec. 572. Rhine v. Ellen, 36 Cal. 362. Bolles V. Sachs, 37 Minn. 315. Raub V. Barbour, 6 Mackey, 245. Halpin V. Stone, 78, Wis. 183. Hame v. Van Orden, 84 N. Y. 269. Holmes' Appeal, 79 Pa. St. 279. Mason v. Buchanan, 62 Ala. no. Hayes v. Peck, 107 Ind. 389. Barter v. Greenleaf, 65 Me. 405. Hutchins v. Hebbard, 34 N. Y. 24. Ruggles V. Glare, Ks. 26 Pac. Repr, 25, ' Peugh V. Davis, 96 U. S. 336. CONSIDERATION. 45 The line between this inquiry and that concerning incomplete and collateral agreements are to some extent coterminous, and reference should here be made to chapter 12, in which the latter topic is discussed. " The right to vary or explain the consideration expressed in a ■written contract, or to prove that it was never paid, does not authorize the introduction of such testimony to affect the terms or validity of the contract." ' " It is well settled in the law of this State, that an instrument assigning or conveying real or personal property in absolute terms, may by parol evidence be shown to have been intended as security only. While this rule is an exception to the general rule of evidence, forbidding the contradiction or explanation of writ- ten instruments by parol evidence, it has long been established in the law of this State. It grew up in the equity courts from the efforts of equity judges to prevent forfeitures, to relieve against frauds, and to enforce the equitable maxim, ' once a mortgage always a mortgage.' " It was supposed that the evidence did not contradict the instrument, but simply showed the purpose for which it was given, and that the instrument, although purposely made absolute, was so made, however, simply for the purpose of giving security to the party to whom it was given, which v/as not really inconsistent with its form. Hence it was conceived that parol evidence show- ing the purpose was not an invasion of the general rule forbidding such evidence to vary, explain or contradict a written instrument. The rule having been established in chancery, was finally, after the Code, and the union of law and equity jurisdiction in the same court, made applicable to cases both in law and in equity. So if this were simply an absolute assignment of the policy to Gibson, there could be no question, under the law of this State, that the plaintiff could be permitted to show by parol that it was intended as collateral security." ^ Illustrations: In Harrington v. Samples, 36 Minn. 200, the question was, whether in an action by the mortgagor of chattels to recover the property from the mortgagee, who had taken it under the mortgage, the mortgagor might show by parol evidence the facts that although the mortgage in terms secured contem- porary promissory notes of mortgagor therein described, yet the mortgage and notes were really given for the purpose of securing ' Schneider v. Turner, 130 111. 28. ' Marsh v. McNair, 99 N. Y. 178. 46 PAROL EVIDENCE. a pre-existing debt of the mortgagor to the mortgagee, and also to indemnify the mortgagee on account of the making of certain notes for the accommodation of the mortgagor ; and that the obligations of the mortgagor, for which the mortgage was intended as security, have been fully performed. In holding that the evidence was admissible, the court said : " The rule against contradicting or varying the terms of a written instrument by parol evidence did not exclude the evidence offered for the purpose of showing the real consideration for which the mortgage security was given, and that it had been discharged by the performance of the obligation to secure which it had been executed. " In Schurmeier v. Johnson, lo Minn. 3 ig (Gil. 250), the purpose of the parol evidence was not to show that the written obligation was intended as collateral security, and that it had been satisfied by the performance of the principal obligation, but it was sought to avoid the written agreement by parol evidence of a contem- poraneous agreement unperformed, that a different contract should be Substituted for that embodied in the written instrument upon which a recovery was claimed." 2. In Barker v. Bradley, 42 N. Y. 316 ; S. C. i Am. Rep. 521, receipts were expressed to be of " one dollar in full of all demands." It was held that evidence was competent to show that there was a contemporaneous oral promise to pay $2,000. The court said : " In reference to all instruments acknowledging the receipt of a consideration, in the form contained in these instruments, it is now well settled that it is competent by parol to show that no consideration was in fact paid or received, or that the consideration was greater or less than, or different from, the one expressed. This may be done for every purpose except to impeach or destroy the instrument. The amount or kind of consideration is not considered an essential part of the contract, and is open to contradiction or explanation, like a common receipt." Transfer of personalty as security : So a written transfer of personal property, absolute on its face, may be shown by- parol to be merely for security. " A court of equity looks beyond the terms of the instrument to the real transaction, and when that is shown to be one of security, and not of sale, it will give effect to the actual contract of the parties. As the equity upon which the court acts in such cases arises from the real character of the CONSIDERATION. . 47 transaction, any evidence, written or oral, tending to show this, is admissible. The rule which excludes parol testimony to con- tradict or vary a written instrument has reference to the language used by the parties. The rule does not forbid an inquiring into the object of the parties in executing or receiving the instru- ment." ' I. Where a chattel mortgage recites an indebtedness of $6,000 as its consideration, it may be shown that the real consideration was the indorsement by the mortgagee of the mortgagor's note. Thus in McKinster v. Babcock, 26 N. Y. 378, where this was held, it was said : " Parol evidence may be given to contradict or explain a mere receipt, and this rule was long since applied to the acknowled^jnent of the receipt of the consideration expressed in a deed. Shephard v. Little, 14 Johns. 210; Bowen v. Bell, 20 id. 338 ; II Am. Dec. 286. In M'Crea v. Purmort, 16 Wend. 460, the English and American cases are largely considered, and it was held that it might be shown that the consideration was iron, of a specified quantity, valued at a stipulated price, instead of money paid, as expressed in the deed. And it was said in the opinion that the cases decided surrendered the consideration clause in a deed to the utmost latitude of inquiry, whenever this should become material to a personal action between the parties. It has been adjudged in several cases that parol evidence is admissible to show the purpose and intent for which a mortgage was executed, though upon its face it should appear to be for the payment of a specified sum of money. It may be shown that its purpose was security for future advances, or responsibilities, or for balances which might be due from time to time. In Shirras v. Caig, 7 Cranch, 34, the mortgage purported to secure a debt of ;£^30,ooo, due to all the mortgagees. It was shown, by parol evidence, that the intent and purpose of the mortgage was to secure different sums due at the time to different mortgagees, and advances afterward to be made, and liabilities to be incurred to an uncertain amount. See also Bank of Utica v. Finch, 3 Barb. Ch. 293 ; 49 Am. Dec. 175. In Truscott v. King, 6 N. Y. 147, a judgment was confessed for $20,000. It was shown by parol evidence that the purpose of the judgment was a security for future advances. These cases relate,to the purposes and objects of the mortgages or judgment which bound real estate, and parol ■Brick V. Brick, 98 U. S. 514, citing Russell v. Southard, 12 How. 139. Hughes V. Edwards, 9 Wheat, 489. 48 PAROL EVIDENCE. evidence was admitted for the purpose of showing the true consideration under the rule that the consideration is open to inquiry. The Supreme Court of the United States have applied the same rule to a chattel mortgage made in Illinois, Lawrence V. Tucker, 23 How. 14." An absolute assignment of a bond and mortgage may be shown to have been merely as collateral security.' So of a bill of sale.^ An absolute bill of sale may be shown to have been intended to be in trust for creditors.' So of an absolute assignment of a life insurance policy.* So of an assignment of a judgment.' So of an assignment of a lease." 2. In Chester v. Bank of Kingston, 16 N. Y. 336, the court said : " Where, as in this case in respect to the bond, there is a perfect delivery of a written obligation, it is plain that evidence cannot be given of a contemporaneous parol agreement, contra- dicting the terms of the instrument or impairing its force. But this rule does not exclude evidence to show that the obligation is collateral to some debt of the obligor or of a third person, and is to become extinct when the debt is paid. Thus A. may be a creditor of B., and may take the common bond of C. for the same debt. The bond is discharged when the debt of B is paid, and it may be shown by parol that such was the agreement and such the purpose of obligation. Such evidence is not regarded as contradicting the written undertaking, but as tending to show that it had been paid and discharged by another person bound for the same debt." 3. In Boyce v. Wilson, 32 Md. 122, it was held that parol evi- dence was not admissible to vary the written contract by striking therefrom the consideration expressed in it, and inserting in its stead another reduced consideration, except in a direct suit in equity to correct the mistake, and in Stockham v. Stockham, 32 Md. 196, a written'offer of $i i ,000 for a farm having been made and accepted, parol proof that it was worth $15,000 or $i6,000 at the date of the contract was held inadmissible. ' Pond V. Eddy, 113 Mass. 149. Morgan's Assignees v. Shinn, 15 Wall. FuUwood V. Blanding, 26 S. C. 312. 105. Mulford V. MuUer, i Keyes, 31. Yarbrough v. Newell, 10 Yerg. 376 ; ' Bryant v. Crosby, 36 Me. 562 ; S. C. (contra : Thompson v. Patton, 5 58 Am. Dec. 767. Litt. 74 ; S. C. 15 Am. Dec. 44.) Clark V. Wash. Fire Ins. Co. 100 Mass. ' Britton v. Lorenz, 45 N. Y. 51. 5oq ; S. C. I iVm. Rep. 135. ■• Matthews v. Sheehan, 69 N. Y. 585. Johnson's Ex. v. Clark, 5 Ark. 321. ' Wade v. Carter, 76 N. C. 171. Smith V. Beattie, 31 N. Y. 542. • Despard v. Walbridge, 15 N. Y. 374. Booth V. Robinson, 55 Md. 419. CONSIDERATION. 49 4. In Lamson v. Moffat, 61 Wis. 1 53, it was held that a written contract, by the terms of which M. leases a farm to L. for one year, surrenders posssession at once, and agrees to do all the work in raising a crop thereon, and to deliver the whole of such crop to L., the latter agreeing to furnish all the groceries needed by M , to furnish the seed, to sign a promissory note of even date with the contract for the sole benefit of M., and upon delivery of the crop to give M. a receipt for $300 of present indebtedness of M. to L., is upon its face a lease, but may be shown by parol or other competent evidence to have been intended merely as a tnortgage of the crop. The court said : " It presents the well- settled proposition that a bill of sale of chattels, or an absolute deed or lease of real estate, may be shown to have been given as a mortgage security by parol, or other competent evidence ; and where the evidence satisfactorily shows that fact, then the con- veyance, whatever its nature or form, will be treated as a mortgage ; and the rights of the parties under such contract will be such, and only such, as they would have been had the writing on its face created the relation of mortgagor and mortgagee." 5. Although parol evidence is incompetent to vary the con- sideration of a bond,' yet the real character of the funds in which it is payable may be shown. Thus the consideration of a bond may be shown by parol to have been intended not to be payable in Confederate money, where the language was " funds current in the State of Virginia." ^ 6. Patol evidence is admissible to show that two bonds were given for the same debt.' That the debt secured by a chattel mortgage is still to be contracted, although this contradicts the recital,* and to show the amount due on a chattel . mortgage executed to secure future obligations or balances.* 7. Where a bond states no consideration, but shows by impli- cation that it is collateral to some agreement not specified, it may be shown by parol that the consideration was a contract of agency/ 8. On a sale of a store and goods therein, it may be shown by parol that the good-will of the business formed part of the consideration.' A deed of a patent may be shown to be a mere security.^ ' Cocks V. Barker, 49 N. Y. 107. ' Singer Manuf. Co. v. Forsyth, 108 Ind. ' Wrightsman v. Bowyer, 24 Gratt. 433. 334. ' Delaplaine v. Hitchcock, 6 Hill, 14. ' Fusting v. Sullivan, 41 Md. 162, * McKinster v. Babcock, 26 N. Y. 380. * Barry v. Colville, I2g N. Y. 302. ' Robinson v. Williams, 22 N. Y. 380. 50 PAROL EVIDENCE. 9. In Graver v. Scott, 80 Pa. St. 88, the contract was for the sale of a piece of land, "also a tract of coal property." It was held competent to show by parol that the parties intended it as an entire contract, that the piece of land was necessary to the enjoyment of the coal property, and that it was an inducement to the execution of the contract. But in Buchtel v. Mason Lum- ber Co. 9 Chic. Leg. News, 225, in the federal circuit of the western district of Michigan, an action on a guaranty of a contract for the sale of lands, evidence to show a parol warranty of a certain quantity of timber on the lands, as the chief inducement to the execution of the guaranty, was refused. 10. Mortgage as indemnity: In Kimball v. Myers, 21 Mich. 276; S. C. 4 Am. Rep. 487, where a mortgage of land was given for a specified sum, it was held competent to prove by parol that it was to indemnify the mortgagee as security for the mortgagor on a note. Cooley, J., said : " It is insisted that it is not competent to prove by parol that it was given to indemnify defendant for becoming security for Morton on the note to Waldby, as this would show, that instead of being given for what appears on its face, it was for a totally different purpose ; and thus the contract would be changed by parol from that stated in the writing to one entirely different. Several cases are cited in support of this posi- tion. Stevens v. Cooper, i Johns. Ch. 425, was a case in which it was attempted to attach to a mortgage of several lots a parol contemporaneous agreement, that in case the mortgagor sold either of the lots, the mortgagee would release it from" the mort- gage on being paid a certain proportionate sum of the amount secured. This was so plainly incompetent that no question would now be made regarding the correctness of the ruling which excluded the evidence of such an agreement. Barker v. Buel, 5 Gush. 519, was where it was sought to show that a mortgage given to secure a surety against the whole amount of a debt was designed to secure him against one-third only. The same may be said of this case as of the last, and with equal reason. Foy v. Blackstone, 31 111. 538, holds that it is not competent for the maker of an absolute note to show, as against the payee or an indorsee, that by an oral contemporaneous agreement, it was only to be payable on a contingency. Columbia v. Amos, 5 Ind. 184, was in legal effect precisely like the case in Illinois. Adair v. Adair, 5 Mich. 204, seems to be the case most reHed upon by the defense. That was a bill to foreclose a mortgage for a certain CONSIDERATION. 5l sum of money, payable in definite installments at fixed periods. The defendant offered to show that when the mortgage was given nothing was due to the mortgagee, and that the mortgage was made, not to secure the payment of any sum of money, but as security for the performance by defendant of a parol contract by which he agreed to pay certain debts of the mortgagee, and to work for and assist him in supporting himself and his wife, they being the defendant's parents. The court held such evidence incompetent, as it entirely changed the character and legal effect of the instrument. Now we are unable to see that any of these cases has a bearing upon the case at bar. We do not understand that the case made by complainant's bill and supported by his proof imports into the mortgage any parol agreement which alters its terms or legal effect. The mortgage was for $8oo, pay- able in one year. The complainant does not dispute that the defendant had a right to enforce the mortgage in exact accord- ance with its terms, unless it was paid and satisfied. His case is, that the mortgage was -satisfied by the payment of the Waldby ■debt ; and the parol evidence he offers is not to contradict or vary the mortgage, but to identify the demand to which it referred. This we understood to be always competent. We understand, also, that evidence of the satisfaction of a demand actually received, though in a manner varying from that agreed, is always competent, notwithstanding it may have been received in accord- ance with some contemporaneous agreement. Bradley v. Bentley, 8 Vt, 245, per Collamer, J.; Hagoo^d v. Swords, 2 Bailey, 305; Crosman v. Fuller, 17 Pick. 174." The same doctrine is recog- nized in Truscott v. King, 6 N. Y. 161 ; Price v. Gover, 40 Md. 102 ; and in Moses v. Hatfield, 27 S. C. 324, oral evidence was permitted to show that an absolute mortgage on land was given for future advances ; and in Simons v. First National Bank, 93 N. Y. 269. to show that a mortgage conditioned as security for " any indebtedness" contemplated future indebtedness. II. Evidence is competent to identify a note secured by a mortgage.' ' Fitzpatrick v. School Comrs. 7 Humph. Williams v. Hilton, 35 Me. 547; S. C. 224; S. C. 46 Am. Dec. 76. 58 Am. Dec. 729. Johns V. Church, 12 Pick. 557; S. C. Fort Worth Nat. Bk. v. Red River Nat. 23 Am- Dec. 651. Bank, — Tex. — . 52 PAROL EVIDENCE. CHAPTER VI. Formation and Delivery. Sec. 32. Conditional delivery. 33. Lack of legal existence. Sec. 33. Conditional delivery. Parol evidence is competent to show that a writing, in form a complete contract, and delivered, was not to become binding until the performance of some condition resting in parol.^ Illustrations : i. As in Wilson v. Powers, 131 Mass. 539, to show that an agreement by a creditor to extend the time of pay- ment by a debtor was only to become binding upon the assent of the surety. The court said : " The manual delivery of an instru- ment may always be proved to have been on a condition which has not been fulfilled, in order to avoid its effect. This is not to show any modification or alteration of the written agreement, but that it never became operative and that its obligation never commenced. Whitaker v. Salisbury, 15 Pick. 534; Davis v. Jones, 17 C. B. 625. "Whether the delivery of a paper is abso- lute or conditional is a question of fact. That a delivery should be conditional, it is not necessary that express words to that effect should be used at the time. That conclusion may be drawn from all the circumstances which properly form a part of the entire transaction, whether in point of time they precede or ' Reynolds V. Robinson, no N. Y. 654. Branson v. Oregoriian Ry. Co., ir Benton v. Martin, 52 N. Y. 570. Oreg. 161. Juilliard v. Chaffee, 92 N. Y. 535. Beall v. Poole, 27 Md. 645. Pyra V. Campbell, 6 Ell. & Bl. 370. Sharp v. U. S., 4 Watts, 21. • Wallis V. Littell, 11 C. B. 368. Sweet v. Stevens, 7 R. I. 375. Wilson V. Powers, 131 Mass. 539. Monro v. Taylor, 8 Hare, 56. Eastman v. Shaw, 65 N. Y. 522. Davis v. Jones, 17 C. B. 625. Skaarass v. Finnegan, 31 Minn. 48. Rogers v. Hadley, 2 H. & C. 229. Westmanv. Krumweide, 30 Minn. 313. Foster v. Mackinnon, L. R., 4 C. P.. Ottawa, etc., R. Co. v. Hall, i Bradw. 704. 6i2. Clever v, Kirkraan, 33 L, T. Rep, (N. Brown v. East. Slate Co. , 134 Mass. 590. S ) 672. FORMATION AND DELIVERY. 53 accompany the delivery. Murray v. Earl of Stair, 2 B. & C. 82." And in Juilliard v. Chaffee, 92 N. Y. 535, to show that an acknowl- edgment of a loan of money was to become an indebtedness only if the receiver failed to apply it on debts of the apparent lender which were to mature. And in Eastman v. Shaw, 65 N. Y. 522, to s^ow that a note was only to become binding on the forma- tion of a corporation. And in Pym v. Campbell, 6 Ell. & Bl. 370, to show that a sale of a patent was only to take effect on the approval of a certain third person. And in Faunce v. State M. L. Ass. Co., loi Mass. 279, to show that a policy of insurance was to issue only on the surrender of a prior policy, which was never surrendered. 2. So an oral agreement maybe shown that an executed bond was to remain in the subscribing witness' hands until the death of A. B. and the surrender of certain securities.' And that arti- cles of partnership were not to become operative until the party drawing thdm up should be satisfied that the indebtedness of two of the parties did not exceed a certain sum." 3. In Leppoc v. Nat. Union Bank, 32 Md. 136, a committee of the Union Bank agreed with D. to purchase from him a cer- tain tract of land, provided the board of directors of the bank would assent to it, and the counsel of the bank would approve it. Thereupon D. had the deed prepared, procured a revenue stamp from the cashier of the bank, and notified him that he intended to have it recorded. It was then duly acknowledged and recorded. L., a judgment creditor of D., then laid an attachment in the hands of the bank. The purchase was afterward disapproved by the bank's counsel, D. notified of the disapproval, and the prop- erty re-conveyed by deed to D. It was held, i, that evidence was admissible to show the arrangement and understanding on which the deed was to have been made ; the rule which excludes parol evidence to affect that which is written not. being infringed by the admission of such evidence to show that the instrument was void, or that it never had any legal existence or binding force, for want of due delivery and acceptance ; 2, that the acceptance of the deed by the bank being dependent on events which never occurred, there was no such delivery of the deed as to make the bank responsible under the attachment process ; nor can the making of the deed and placing it on record by the grantor, without sufficient legal sanction of the bank, charge the bank as ' Murray v. Earl of Stair, 2 B. & C. 82. ' Beall v. Poole, 27 Md. 645. 54 PAROL EVIDENCE. grantee ; 3, that while a deed, duly acknowledged and recorded,, will be treated as having been delivered to and accepted by the I grantee, in the absence of all proof to the contrary, these facts only give rise to a prima facie presumption, liable to be repelled. 4. So where an agreement recited that it was executed by several persons, oral evidence may be given to show that it was executed and delivered by one on condition that the other join." " It is very well settled," said the court, " that where a bond, a deed, or' other written instrument is executed by a por- tion only of those who appear in the body of the instrument as. parties, the question whether those who have executed it are bound, depends upon the circumstances under which the instru- ment was delivered. Those circumstances are open to proof by parol, and if it appears that at the time of the delivery, by any- party whose signature is affixed, anything was said indicating that such party did not intend to be bound unless other parties also signed, the delivery will be considered as not absolute, but in escrow merely." Inconsistency between condition and written terms : Where there is a conditional delivery of the contract, it makes no difference that the condition is inconsistent with and contradictory of the terms of the contract. This is well illustrated in Reynolds v. Robinson, 37 Hun, 561, no N. Y. 654. This was a case of a contract of sale entered into- by letters, which provided for a specific term of credit. Evidence was given that it was orally agreed that there was to be no sale unless the vendor obtained a favorable report of the purchaser's financial standing from a mercantile agency to which he was referred. In the Supreme Court this was held improperly received, , on the ground that it "tended directly to impair the force of a provision introduced into the written contract," and was in no sense a collateral agreement. But the court seem to have mis- taken the ground on which the admission was based. It was not claimed that the oral agreement was collateral and additional, but that the evidence went to show that there was no contract. The writings and the oral agreement amounted to a sale on credit if the report was favorable, but if unfavorable then there was to be no sale ; if the party proved worthy of (;redit, there was to be a sale on the credit specified in the letters; if unworthy, then there was to be no sale at all. The decision of the supreme court was criti- ' Chouteau v. Suydam, 2i N. Y. 179. (See 25 Am. Rep. 706.) FORMATION AND DELIVERY, 55 cised by Mr. Jones (Const. Cont. § i6i, note), on the ground that it was a case of conditional delivery, and subsequently the decision was reversed by the Court of Appeals (i lo N. Y. 654), the court observing: "The finding of the referee, which is supported' by evidence, to the effect that the contract for the purchase and sale cf the lumber on credit, contained in the correspondence between the parties, proceeded upon a contemporaneous oral understand- ing that the obligation of the defendants to sell and deliver was contingent upon their obtaining satisfactory reports from the com- mercial agencies as to the pecuniary responsibility of the plaintiff, brings the case within an exception to the general rule that a written contract cannot be varied by parol evidence, or rather it brings the case within the rule, now quite well established, that parol evidence is admissible to show that a written paper which, in form, is a complete contract, of which there has been a manual tradition, was nevertheless not to become a binding contract until the performance of some condition precedent resting in parol." Sec. 33. Lack of legal existence. Parol evidence is admissible to show that an apparent contract never had a legal existence. Illustrations: i. A familiar example is an insurance policy, in a suit upon which evidence of want of interest, or the converse, on the part of the insured, is competent.' 2. It has been held that where no goods are furnished for transportation, no basis is furnished for a bill of sale reciting the receipt of goods, and parol evidence is competent to show the fact, even as against a bona fide consignee or indorsee.^ 3. On this principle, parol evidence is admitted to show that a shipper did not assent to stipulations in a receipt or bill of lading.^ And that a carrier's receipt did not bind him.* 4. Parties to a contract may agree upon the method of its execution and delivery, and if any material stipulation' relating ' Cross V. Nat. F. Ins. Co. 132 N. Y. 133. ' Black v. Wilmington, etc., R. Co. 92 Seeal so Brewster v. Reel, 74 Iowa, N. C. 42; S. C. 53 Am. Rep. 450. 506, the case of one partner's con- Pollard v. Vinton, 105 U. S. 7. veying the partnership property to ' King v. Woodbridge, 34 Vt. 565. pay his copartner's individual debt, Boorman v. Am. Ex. Co. 21 Wis. 152. without his consent; Corbin v. Sist- Madan v. Sherard, 73 N. Y. 329; S. runk, ig Ala. (N. S.) 203; Hoag v. C. 29 Am. Rep. 153. Owen, 60 Barb. 34; Black V. W., etc., ^ Scovill v. Griffith, 12 N. Y. 509. Ry. Co. HI III. 351. 56 PAROL EVIDENCE. thereto remains unperformed by them, the instrument will not take effect as their contract. In Whitford v. Laidler, 94 N. Y. 145; S. C. 46 Am. Rep. 131, an instrument purporting to be a contract between the plaintiff of one part, and thirteen individ- uals therein named of the other part, was signed by the plaintiff and by some but not all of the thirteen, and by the mutual con- sent of all signing was left with another person, not a party to it, to procure the signatures of the other parties named therein, and upon his accomplishing that object he was instructed to deliver the paper to the town clerk. Held, that until that condition was performed, the writing was incomplete and unexecuted. The court said : " The proper execution of a written instrument, according to the understanding of the parties, and its delivery in a particular manner, where such delivery is provided for, are essen- tial perquisites to the legal execution of the instrument." 5. In Union Trust Co. v. Whiten, 97 N. Y. 172, an action to recover the amount of an alleged loan from plaintiff to defendant, the defense was that the loan was negotiated by defendant for and upon collaterals belonging to a disclosed principal. Plaintiff proved the delivery of a check to defendant, payable to his order, for the amount of the loan, and produced an envelope in which were the securities upon which the loan was made ; upon this was indorsed the date of the transaction, defendant's name and place of business, written by him, the time of the loan, from whom, the amount of the rate of interest, and then a list of the securities. Held, that the indorsement was not a contract, as there was no promise to pay, nor was it an acknowledgment of an indebted- ness, or that defendant was the borrower, and that parol evidence was proper to show that fact. The court said: "Where the language of an instrument is ambiguous, evidence of the surround- ing circumstances may be resorted to for the purpose of deter- mining what the real intention is. Brill v. Tuttle, 81 N. Y. 45^. Parol evidence may also be introduced to show that even when a writing purports to be a contract it may not be such. Grierson v. Mason, 60 N. Y. 397. In the case last cited the defendant had proved a contract and the plaintiff proved an instrument which altered the contract. The defendant introduced evidence to show that the instrument was not intended as an alteration of the con- tract, but was executed with the view of accomplishing a partic- ular purpose. It was then laid down that such evidence was not given to change the written contract by parol, but to establish FORMATION AND DELIVERY. 57 tTiat sucli contract had no force, efficacy or effect. That it was not intended to be a contract, and that such evidence did not come within the ordinary rule of excluding parol evidence to contradict written testimony, but tends to explain the circum- stances under which such an instrument was executed and deliv- ered. It is also stated that the purpose for which a writing was executed may be proved by parol when not inconsistent with its terms. If the rules stated are applicable where there is a com- plete contract, much stronger reasons exist for invoking, them where the terms of the contract are uncertain and ambiguous, as is the fact in the case at bar. The rule appears to be well estab- lished, that even although a contract is made out, if any ambiguity .arises in reference to any portion of it, the question presented is 'One of fact for the consideration of the jury, upon such testimony, either in writing or oral, as the parties are able to present. See Brill V. Tuttle, 8i N. Y. 460; Field v. Munson, 47 id. 223, and Fabbri v. Ins. Co., 55 id. 133. The cases are numerous which sanction the introduction of evidence which will cast light upon those terms in the contract which are not clear and explicit, and rserve to explain what the real intention of the parties was. This rule has been held to apply particularly to insurance cases of an analogous character where the language is uncertain and ambig- uous as to the interest intended to be insured, and it is held that -paror evidence is admissible to place the court in a position to be, able to ascertain what interest the insured has, and what was intended to be covered by the policy. Pitney v. Glens Falls Ins. Co., 65 N. Y. 13. Numerous cases sustain the rule that admis- sions, whether oral or written, may be explained or contradicted by parol or other evidence. DeLavallette v. Wendt, 75 N. Y. 580; Juilliard v. Chaffee, 92 id. 535 ; Ellis v. Willard, 9 id. 531 ; Mc- Master v. President, etc., 55 id. 228 ; Stanton v. Miller, 58 id. 203 ; Smith v. Holland, 61 id. 635. But inasmuch as the question here presented relates to the uncertainty and ambiguity of the indorse- ment on the envelope, it is unnecessary to invoke the application ■of this rule in order to sustain the decision of the court allowing the introduction of parol evidence." 6. In Grierson v. Mason, 60 N. Y. 394, the action was for an agent's guaranteed commissions, at a certain gross amount. Plaintiffs produced a written contract giving the agent the exclu- sive right to sell their goods for a specified commission, but not guaranteeing any amount, Parol evidence was allowed to show 58 PAROL EVIDENCE. that the sole purpose of the writing was to enable the agent to- get advances from third parties. The court said : " This is in avoidance of the instrument, and not, to change it. * * * It would, I think, have been proper to show that the instrument was given up, and equally so that it did not constitute the entire contract, as it was only for a special purpose. So the grantor may show that the purpose of the deed was to enable the grantee, his agent, to cpnfer title. Collins v. Tillou's Adm., 26 Conn. 368 ; S. C. 68 Am. Dec. 398. And an insurance company may avoid its policy on goods insured to a husband, by showing that they belonged to his wife. Agric. Ins. Co. v. Montague, 38 Mich. 548; S. C. 31 Am. Rep. 326." 7. So evidence was held admissible to show that a bill of lumber was sent merely as a memorandum of the value to be accounted for on the settlement of a contract for building a boat, and not as a contract of sale.' The court said : " It was com- petent to show the purpose for which the bill was sent, to explain its real meaning and significance. If in fact there was a present sale of the lumber made out by other and undisputed evidence, then the purpose of sending the bill would be immaterial. But the plaintiff having used the bill as an admission of a prior sale, the explanation should have been allowed for the consideration of the jury. Even if the bill was made out concurrently with the contract and was part of the res gestce, it is not a writing having such a complete and decisive character as would render the pro- posed evidence inadmissible. See Hazard v. Loring, 10 Cush. 267." 8. Under this head may properly be classed agreements agreements entered into by mutual or unilateral mistake of fact, which do not express the real intention of the parties, ajid in accordance with the language of which the minds of the parties never coincided. So of contracts executed by those incapable of binding themselves absolutely, by reason of infancy, coverture, or want of reason." So of contracts procured by duress.^ So of a contract not executed by all the parties recited as executing it, and delivered on condition that all join.* So of contracts never delivered.^ Or a contract signed by one apparently as agent but ' Crosby v. President, etc., 128 N. Y. 641. Matthews v. Baxter, L. R. 8 Ex. 132. ° Webster v. Woodford, 3 Day, go. * Stouffer v. l.atshaw, 2 Watts, 165. Mitchell V. Kingman, 5 Pick. 431. Thompson v. Lockwood, 15 Johns. 256,. Rice V. Peet, 15 Johns. 503. * Chouteau v. Suydam, 21 N. Y. 179. Gore V. Gibson, 13 M. & W. 623, ' Leppoc v. Nat. Un. Bank, 32 Md. 136- FORMATION AND DELIVERY. 59' without authority.' Or a contract signed with a fictitious name.^ Or a deed of lands in the adverse possession of another, or a claim purchased by an attorney for the purpose of suing, where such a thing is void by statute. So of papers never intended as a contract.' As of a memorandum made and read over to one party by the other, but not executed.'' Or a memoran- dum of a lease signed by one only, stating that he was to give a lease for seven years, but stating no term.* Or a mere receipt for purchase money .' Or a mere power of attorney.' Or an indorsement of a note merely to transfer title, the indorsee orally agreeing not to hold the indorser.' Or a mere form intended to appear in a prospectus of a corporation, which the promoters were required by law to publish.' ' 9. But in Wharton v. Christie, 53 N. J. L. 607, Court of Errors and Appeals, it was held that if an employee, having been illegally discharged, send in his written resignation, and the same has been accepted by his employer, a suit will not lie in his behalf on the contract of service, and parol evidence is incompetent to destroy or impair such written contract. (This was laid down by seven judges against six.) Knowledge of mental incapacity. — In case of the setting up of lack of reason as a defense to a contract, the plea must be accom- panied by proof of knowledge thereof in the other party at the time of entering into the contract. As Holland observes : " The validity of a contract depends not on the consent of wills, but on the apparent consent of wills." Thus in Imperial Loan Co. v. Stone, 66 L. T. Rep. (N. S.) 556; in the Court of Appeal of England, this rule was laid down by the judges as follows: By Lord Esher, M. R. : "I shall not go through all the cases from the beginning, but as I think it would be well for this court to lay down an absolute rule, I will state my view of what is the result of all the cases. It is this : When a person enters into an ordinary contract, and afterwards alleges that • Sheffield v. Ladue, 16 Minn. 388; S. ' Thomas v. Nelson, 69 N. Y. 118. C. 10 Am. Rep. 145. ' Perrine v. Cooley's Exr's. 39 N. J. L. "^ Bartlett v. Tucker, 104 Mass. 336; S. C. 449. 6 Am. Rep. 240. Irwin v. Thompson, 27 Kans. 643. 5 Jones V. Hardesty, 10 G, & J. 404; S. C. ■■ Hutchins v. Hebbard, 34 N. Y. 24. 32 Am. Dec. 180. ^ Bruce v. 'Wrighi;, 5 Thomp. & Cook, 8i. Heffron v. Pollard, 73 Tex. 96 ; S. C. ' Branson v. Oregonian Ry. Co. , 11 Oreg.- 15 Am. St. Rep. 764. l6i. 4 Lathrop v. Bramhall, 64 N. Y. 365. '60 PAROL EVIDENCE. he was so insane at the time he did so that he did not know what he was doing, though he proves that to be so, the contract is as binding on him in every respect and to every extent as if he had been fully sane, unless he also prove that at the time of making the contract, the person he contracted with knew him to be so insane as not to know what he was doing. For many years it has been the law that a plea that the defendant was so insane at the time of entering into the contract that he did not know what he was doing has been held not to be a good plea, unless there was an averment of the plaintiff's knowledge of this insanity ■of the defendant. The necessity of this last averment could not be supported unless the law is what I have stated. . The defend- ant must prove, besides the fact of his insanity, the fact that the plaintiff knew of it." By Fry, L. J. : " In Molton v. Camroux 2 Ex. 487 ; (affirmed on error by the Court of Exchequer Cham- ber) Pollock, C. B., at p. 502, says : ' On looking into the cases at law we find that in Brown v Jodrell, 3 C. & P. 30, Lord Ten- terden says: ' I think the defense (of unsoundness of mind) will not avail, unless it be shown that the plaintiff imposed on the defendant.' In Baxter v. Earl of Portsmouth, 5 B. & C. 170, Abbott, C. J., with the concurrence of the rest of the court, laid down the same doctrine. In Dane v. Viscountess Kirkwall, 8 C. & P. 679, Patteson, J., in directing the jury, said : ' It is not sufficient that Lady Kirkwall was of unsound mind, but you must be satisfied that the plaintiff knew it and took advan- tage of it.' On the old rule, therefore, has been engrafted this exception, that when a defendant can show himself to have been non compos mentis at the date of the contract, and can show also that the plaintiff knew of this fact, then, and then only, he can avoid his contract." By Lopes, L. J. : " The result of the authorities on this branch of law may, I think, be summed up thus : A contract made by a person of unsound mind is not voidable at that person's option if the other party to the contract believed at the time he made the contract that the person with whom he was dealing was of sound mind. In order to avoid a fair contract on the ground of insanity the mental incapacity of the one must be known to the other party. A defendant must plead and prove both his insanity and the knowledge of the plaintiff; the burden of proof of both those facts lies on the defendant." LEGALITY OF AGREEMENTS. 61 CHAPTER VII. Legality of Agreements. Sec. 34. Contract apparently valid. 35. Executed illegal contract. 36. Contract apparently invalid. Sec. 34. Contract apparently valid. Parol evidence is competent to show that an executory contract was made in furtherance of objects forbidden by statute, by common law, or by the general policy of the law. Illustrations: i. This principle was laid down in a learned discussion in Martin v. Clarke, 8 R. I. 389; S. C. 5 Am. Rep. 586, where the court, in an action to compel specific performance of a contract between attorney and client, approved the admission of extrinsic evidence to show that it was champertous. The court said that " the rule excluding parol evidence will not prevent a court, either of law or of equity, from looking through all dis- guises in order to detect fraud or illegality, and from inquiring into the true nature of the transaction and the intent of the par- ties in this regard." Citing Collins v. Blantern, 2 Wils. 341, and Paxton v. Popham, 9 East, 416. 2. So in Donley v. Tindall, 32 Tex. 43 ; S. C. 5 Am. Rep. 234, an action on a promissory note, it was held that parol evidence was admissible to show that the real undertaking was that the note should be paid in Confederate money, though not so ex- pressed in the instrument. The court said : " It is admitted by those who differ with me on this question, that if the character of the agreement as pleaded appeared upon the face pf the instru- ment, there could be no question in that case of its viciousness and condemnation^ I have stated the general rule to be that the operation of parol evidence in cases of written contracts is con- fined within the strict limits of exposition or interpretation, but have at the same time shown that this rule is based upon the assumption that the instrument has a /^^a:/ existence, and is valid. 62 PAROL EVIDENCE. This position will be found most amply sustained in the following cases: Mann v. Eckford's Executors, 15 Wend. 518; Parker v. Parmele, 20 Johns. 134; Vrooman v. Phelps, 2 Johns. 177; Pax- ton V. Popham, 9 East, 408. See also the authorities to which these decisions refer."' 3. So it was held of a lease of premises to be used for an un- lawful purpose." So of a contract for sale of goods, but really a mere wager-contract.^ The court here said : " The statute against wager-contracts would be of small value if the truth could not be shown by extrinsic evidence, and it was competent to give such evidence." A very common example is an usurious contract. So of a contract in consideration of past or present illicit inter- course.' So of a contract to divide fees of office.* And of a bond to stifle a prosecution for perjury.' Sec. 36. Executed illegal contract. But an execjuted illegal contract may not be impeached , by any party to it.'' ' To the same effect, Waymack v. Heil- man, 26 Ark. 449. Patton V. Gilmer, 42 Ala. 548 ; S. C. 94 Am. Dec. 665. Lazare v. Jacques, 15 La. Ann. 599. Wolf V. Fletemeyer, 83 111. 418. Henderson v. Palmer, 71 III. 579 ; S. C. 22 Am. Rep. 117. Buck V. First Nat. Bank, 27 Mich. 293 ; S. C. 15 Am. Rep. 189. Peed V. McKee, 42 Iowa, 689 ; S. C. 20 Am. Rep. 631. Fenwick v. Ratliff, 6 T. B. Monr. 154. ■' Sherman v. Wilder, 106 Mass. -537. = Peck V. Doran & Wright Co. 57 Hun, 343- In " A Treatise on Contracts for Future Delivery and Commercial Wagers, includ- ing ' Options, Futures and Short Sales, ' " by T. Henry Dewey, of the New York bar, the author contends that in a case where the contract is in writing, and the understand- ing that no delivery is to be made is not expressed, parol evidence is inadmissible to establish the fact. I do not so under- stand the rule. The evidence is admis- sible, not for the purpose of contradicting the agreement in writing, but for the pur- pose of showing that the intent of the parties was merely to gamble ; notwith- standing it may have the effect to vary the terms of the writing. Again it has been held that evidence to establish any defect of this character (illegality) in the alleged contract does not come within the spirit or the letter of the rule excluding parol evidence. Jones Const. Cont. § 191, cit- ing authorities. See also Kreigh v. Sher- man, 105 111. 49, and Stewart v. Schall, 65 Md. 289. * Beaumont v. Reeye, 8 Ad. & Ell. (N.S.) 483. Held to the contrary as to past cohabitation. Brown v. Kinsey 81 N. C. 245. ' Gray v. Hook, 4 Comst. 449. ' Collins v. Blantern, 2 Wils. 341. ' Ayerst v. Jenkins, 16 Eq. 275. Marksbury v. Taylor, 10 Bush, 519. Denton v. English, 2 Nott & McC. 581. Fletcher v. Watson, 7 Gratt. 16. White V. Hunter, 23 N. H. 128. Bivins v. Jarnigan, 3 Baxt. 282. Gisaf v. Neval, 81 Pa. St. 354. Hill V. Freeman, 73 Ala. 200. LEGALITY OF AGREEMENTS. 63 Reason of the rule : While the law refuses its aid in the en- forcement of an illegal contract, for the reason that it will not assist in defeating its own beneficent rules and promoting injustice it equally refuses to relieve a party to the unlawful agreement who has suffered by the enforcement of it. The law will prevent wrong from being done, but when it is done it leaves the party to his fate. Thus although the law will refuse to aid one in recovering a bet from the loser or stakeholder, or unlawful interest from the debtor, yet the wager or the interest being paid it will not, in the absence of a different statutory regulation, lend its process for the recovery again. The familiar maxims on this point are, " In pari delicto potior est conditio defendentis," " Audi- endus nemo allegans suarn turpitudinem" and " Ex turpi causa non oritur actio." Of the last maxim Lord Justice Lindley recently -observed : " This old and well-known legal maxim is founded in good sense and expresses a clear and well-recognized legal principle, which is not confined to indictable offenses. No court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or trans- action which is illegal, if the illegahty is duly brought to the notice of the court, and if the person invoking the aid of the court is himself implicated in the illegality. It matters not whether the defendant has pleaded the illegality or whether he has not. If the evidence adduced by the plaintiff proves the illegality the court ought not to assist him. If authority is wanted for this proposition it will be found in the well-known judgment of Lord Mansfield in Holman v. Johnson, Cowp. 343. In this case the correspondence put in evidence by the plaintiff in support of the claim he made at the trial shows conclusively that the sole object of the plaintiff in ordering shares to be bought for him at a premium was to impose upon and to deceive the public by leading the public to suppose that there were buy- ers of such shares at a premium on the Stock Exchange, when in fact there were none but himself. The plaintiff's purchase was an actual purchase, not a sham purchase ; that is true, but it is also true that the sole object of the purchase was to cheat and mislead the public. Under these circumstances the plaintiff must look elsewhere than to a court of justice for such assistance as he may require against the persons he employed to assist him in . his fraud, if the claim to such assistance is based on his illegal 64 PAROL EVIDENCE. contract. Any rights which he may have irrespective of his^ illegal contract will of course be recognized and enforced. But his illegal contract confers no rights on him. See Pearce v. Brooks, L. R. i Ex. 213. The illegal purposes of the plaintiff distinguish this case from Wetherell v. Jones, 3 B. & Ad. 221, and others of a similar kind. I am quite aware that what the plaintiff has done is very commonly done ; it is done every day. But this is immaterial. Picking pockets and various forms of cheating are common enough, and are nevertheless illegal." In Collins v. Blantern, 2 Wils. 341, Wilmot, C. J., said: "This is a contract to tempt a man to transgress the law ; to do that which is injurious to the community; it is void by the common law ; and the reason why the common law says such contracts are void is for the public good. You shall not stipulate for iniquity. All writers upon our law agree in this, no polluted hand shall touch the pure fountains of justice. Whoever is a party to an unlawful contract, if he hath once paid the money stipulated to be paid in pursuance thereof, he sh^Il not have the help of a court to fetch it back again ; you shall not have a right of action when you come into a court of justice in this unclean manner to recover it back. Pro- cul, O ! procul este profam ! " Sec. 36. Contract apparently invalid. Parol evidence is admissible to show that a contract apparently invalid is really valid. Illustrations : As to show the understanding that only legal interest was to be charged when the contract calls for illegal interest.' The court said : " It is in virtue of its superior obliga- tion that a written contract has the effect of extinguishing the verbal contract upon which it is founded ; and of course where it has no obligation whatever, it can have no such effect." ' So a usurious contract may be purged by a subsequent oral agree- ment.' So evidence is admissible to show that the consideration arose in a state where it was lawful.^ , Contrary doctrine : But in Porter v. Havens, 37 Barb. 343, where there was an agreement that the notes in suit were to be executed and placed in escrow and not to be delivered until cer- ' Roosevelt v. Dreyer, 12 Daly, 370. * De Wolf v. Johnson, 10 Wheat. 367. ' Lear V. Yarnel, 3 Marsh. (Ky.) 421. < Western, etc., Co. v. Kilderhouse, 87- Boorman v. Jenkins, 12 Wend. 573. N. Y. 430. LEGALITY OF AGREEMENTS. 65 tain criminal prosecutions against the maker should be " discon- tinued and ended," and were to be delivered only on the condit?ion that the payee should not arrest the maker, but should cease all proceedings against him, parol evidence was held inadmissible to show that the consideration was not to co^npound a criminal offense nor unlawful. Reason of the rule : This latter doctrine is clearly unsound. It would convert the technical rule excluding parol evidence into an instrument of wrong-doing. It would be a strange inconsist- ency if parol evidence should be admitted, as it uniformly is, to prevent wrong by showing that a contract is for an illegal pur- pose, and yet exclude it when offered to show that the contract is legal, and thus prevent the law from effecting the right. Where the contract is not unlawful, but is- apparently invalid for want of consideration, the fact of consideration may be sup- plied by parol. As in the case of a voluntary subscription, the contract maybe upheld by proof that the promisee has expended money or incurred expense on the faith of it.^ ' Philomath College v. Hartless, 6 Oreg. 158; S. C, 25 Am. Rep. 510. 66 PAROL EVIDENCE. CHAPTER VIII. Fraud. ( Sec. 37 Actual fraud, undue influence, duress. 38. Constructive fraud. 39 Exception as to wills. Sec. 37. Actual fraud, etc. An instrument may be avoided for fraud, undue influ- ence, gross inequality, or duress, by the party to it thus defrauded or overcome, or by a third party whom it was executed to defraud.^ " It is a known rule of law that no man shall take advantage of his own wrong. ' ' ' Nee lex est justior uUa Quam necis artifices arte perire sua.' " ' " Fraud may be said to consist, on the one hand, ( i) in one man's endeavoring by deception to alter another man's general rights, or (2) in one man's endeavoring by circumvention to alter the general rights of another ; or on the other hand, (3) in one ' Juzan V. Toulmin, g Ala. 662 ; S. C. Mallory v. Leach, 35 Vt. 156 ; S. C. 82 44 Am. Dec. 448. Am. Dec. 625. Burch V. Smith, 15 Tex. 219 ; S. C. 65 Cameron v. Cameron, 15 Wis. i ; S. C. Am. Dec. 154. 82 Am. Dec. 652. Moore v. Pierson, 6 Iowa, 279 ; S. C. Powelton Coal Co. v. McShain, 75 Pa, 71 Am. Dec. 409. St. 238. Davis V. McNalley, 5 Sneed, 583 ; S. Kilmer v. Smith, 77 N. Y. 226 ; S. C. C. 73 Am. Dec. 159. 33 Am. Rep. 613. Jackson v. King, 4 Cow. 207 ; S. C. 15 Coffman v. Lookout Bank, 5 Lea, 232 ; Am. Dec. 354. S. C. 40 Am. Rep. 31. Owing's case, i Bland. Ch. 370 ; S. C. McCormick v. Miller, 102 111. 208 ; S. 17 Am. Dec. 311. C. 40 Am. Rep. 577. Smith V. Beatty, 2 Ired. Eq. 456; S. C. Montgomery v. Scott, 9, S. C. 20 ; S. 40 Am. Dec. 435. C. 30 Am. Rep. i. Tracey v. Sackett, i Ohio St. 54 ; S. C. Ewing v. Smith, Ind. 31 N. E. 59 Am. Dec. 610. Rep» 464. Sutton V. Reagan, 5 Blackf. 217 ; S. C. Cooper v. Finke, 38 Minn. 2. 33 Am. Dec. 466. ' Gibson v. Minet, i H. Bl. 585. Twambley v. Rickard, Mass. FRAUD. 6T man's endeavoring by deception to alter another man's particular rights, or (4) in one man's endeavoring by circumvention to alter the particular rights of another man. And this may be com- passed into the following : Fraud consists in endeavor to alter rights, by deception touching motives, or by circumlocution not touching motives.'" , In Chesterfield v. Jamesen, 2 Ves. 155, Lord Hardwicke defined fraud as follows : " Firstly, actual fraud, or dolus malus, arising from facts and circumstances of imposition ; secondly,, fraud arising from the intrinsic nature and subject of the bar- gain ; thirdly, fraud which may be presumed from the circum- stances and condition of the parties contracting; fourthly, fraud which may be collected and inferred from the matter and circum- stances of the transaction, as being an imposition and cheat on other persons not parties to the transaction." The law abhors fraud, and equity relieves against it. Where law and equity are separately administered it is necessary to appeal to equity for practical help, in spite of the law's theoretical hatred of fraud, but where they are administered in the same court, the fraud may be alleged and proved as a defense even in kn action to enforce the fraudulent instrument. The effectuation of this purpose is a common and one of the most beneficial ■ offices of parol evidence. The instances of its admission are almost innumerable ; it pertains to many legal and natural rela- tions ; and the variety of circumstances in which it has been resorted to is sufficient to warrant a separate treatise, which has been very intelligently furnished by Mr. Kerr, under the title of " Fraud and Mistake." The relation of debtor and creditor gives rise to the most frequent interposition of equity for relief Contracting not to set up fraud in defense : The strictness with which the law applies the principle that fraud vitiates a contract is strikingly illustrated in a recent and novel case in the Supreme Court of New York, Unive'rsal Fashion Co. v. Skinner, 64 Hun, ' Bigelow Fraud, 5. wax nor words." A little Shakespear- ' Sir Giles Overreach, in Massinger's ian law-learning wbuld have taught drama, " A New Way to Pay Old him that equity would have helped him Debts," need not have been so dis- out by parol evidence, without resorting tracted on discovering how Marrall to the statute against witchcraft with had treacherously contrived with which he threatened his unfaithful clerk, "certain minerals incorporated in the if the instruments were not illegal, and if ink and wax " to "raze out the con- they were, there was no need of the pious, veyance" and leave nothing but "a fraud to defeat them. But as a rule, the fair skin of parchment " with ' ' neither drama knows no law. €8 PAROL EVIDENCE. 294. The plaintiff sued the defendant Skinner for goods sold under a written contract which contained a clause stating that its stipulations contained the whole contract, and that any terms ■different therefrom or supplemental thereto should bind neither party. Skinner's answer admitted the contract, but alleged, in avoidance, the fraud of the company's agent ; that the agent stated that the goods were new to the city where they were to be sold ; that they were to be merchantable, and that Skinner was to be the sole agent in that city ; and that these representations were false. The plaintiff demurred to the answer. It was held that as by the demurrer ,it was admitted that the representations of the agent were false, the contract based upon them was void. O'Brien, J. dissenting, set forth the provision of the contract in question as follows: "That no terms or conditions different therefrom, or supplemental thereto, shall be binding upon either party, and that all statements and representations not hereinbefore expressed in writing shall be absolutely inoperative to effect the right of either party hereto ; ' cited Seitz v. Brewers'-; etc., Co., 6 N. Y. L. J. 631, and Eighmie v. Taylor, 98 N. Y. 288 ; and urged : " Under this rule, where the parties themselves stipulate that the writing contains the entire contract, it is difficult to see upon what theory contemporaneous oral agreements or representations are admis- sible to vary a written contract." But Van Brunt, P. J., said . ■" The provisions of the fourth section of the contract add nothing to its force, as the law implies the same ; the demurrer admits that the defendant was induced to enter into the contracts by false and fraudulent representations. The fact of the represent- ations being made by an agent, and not by the principal, does not alter the question, as there is no proof that the agent was not authorized to make the representations, and besides, if a party is induced to enter into a contract by false representations upon the part of an agent the principal cannot claim the contract freed from the representations." And Andrews, J. observed : " If the construction of section 4 of the contract contended for by plaintiffs counsel is correct, that section is an agreement that the plaintiff shall not be liable for the fraud of its own agent. Such an agreement cannot be enforced." The decision seems to be sound, but the observation of the presiding judge that the peculiar provision of the contract " adds nothing to its force, as the law implies the same," seems incorrect, for the law does not conclusively imply that the paper contains the whole contract, nor FRAUD. 69 prohibit the parties from agreeing that no supplemental terms shall be introduced by parol. Relations enabling the operation of fraud, etc.: Kerr says ( Fraud and Mistake,'p. 192): " The jurisdiction of the court in relieving; against transactions on the ground of undue influence has beeiii exercised as between a medical man and a patient ; as between) the keeper of a lunatic asylum and a patient under his care ; as. between a minister of religion and a person under his spiritual influence ; as between a spiritualist medium and an old lady ; as between a young man in the army, just come of age, and his superior officer ; as between husband and wife; as between a man and a lady to whom he was about to be married ; as between a man and a woman with whom he was living ; as between brother and sister; as between two .brothers; as between an elder and a younger brother just come of age ; as between an uncle and his nephew who was deaf and dumb ; as between an uncle, who was in such a state of bodily and mental imbecility as rendered him incapable of transacting business requiring deliberation and reflec- tion, and a nephew ; as between nephew and aunt, or aunt and niece ; as between a young man just come of age, and a man who had acquired an influence over him during his minority; as between a young man of intemperate habits and a person with whom he was living ; as between art unmarried woman and her brother-in-la^ir ; as between an old lady and a woman living with her in the capacity of a companion or domestic; as between a child and an imbecile parent ; " etc' Illustration : In Ewing v. Smith, — Ind. — , a son, who had just attained his majority, who had no knowledge of business, and who was intemperate, and easily influenced, was induced by his father, a wealthy man, of large experience and force of char- acter, to convey to him, for the expressed consideration of $600, ' Allen V. Davis, 4 DeG. & Sm. 133. Wright V. Proud, 13 Ves. 136. Norton v. Relly, 2 Edm. 286. Lyon V. Home, 16 W. R. 824. Lloyd V. Clark, 6 Beav, 309. Lambert V. Lambert, 2 Brown P. C. 18. Page V. Home, 11 Beav. 227. Coulson V. Allison, 2 D. F. & J. 521. Sharp V. Leach, 31 Beav. 4gi. Sturge V. Sturge, 12 Beav. 229. Sercombe v. Sanders, 34 Beav. 382. Harvey v. Mount, 8 Beav. 439. Tate V.Williamson, L, R. 2 Ch. App. 55. Ferres v. Ferres, 2 Eq. Ca. Ab. 695. Willan v. Willan, 2- Dow, 274. Griffiths v.,Robins, 3 Madd. 191. Anderson v. Elsworth, 3 Giff. 154. Grosvenor v. Sherratt, 28 Beav. 661. Terry v. Wacher, 15 Sim. 447. Rhodes v. Bate, L. R. i Ch. Ap. 252. Cole V. Gibson, i Ves. 503. Whelan v. Whelan, 3 pow. 538. 70 PAROL EVIDENCE. all his property, in trust for himself for life, remainder to his per- sonal representatives. There was no actual consideration for the deed. The father subsequently reconvened the property, and the son conveyed the land in controversy to bona fide purchasers, after which he died. Held, that his legal representatives had no title to the land that equity would enforce, as the deed of trust was unconscionable, was procured by fraud and undue influence and was revoked by the reconveyance. The court said : " There can be no doubt that where there is fraud or mistake in exe- cuting or securing the execution of a conveyance for which no consideration is paid, parol evidence is competent. In this case the character of the instrument, with very slight additional evi- dence, fully opened the way to the admission of conversations between the grantor and grantee. We think it very clear that there was no error in admitting parol evidence, nor in refusing to instruct the jury that they could not regard such evidence." Sec. 38. Constructive fraud. Where one occupies a position of trust for, or sustains a relation of legal or natural authority or influence over, another, any gift or benefit from the latter to the former, or any financial settlement between them, is presump- tively void, and can be enforced or retained only upon the clearest proof of good faith on the part of the former, and of understanding and intention on the part of the latter.' The donee must satisfy the court, in a suit brought to set aside the gift, that the donor had competent and independent advice in conferring the benefit, that he fully understood the nature of the transaction, and that no undue influence was practiced, and this independent of age, sex, mental infirmity and other incapacity. The rule extends to gifts from children to parents and settle- ments between guardians and wards, not only in minority, but shortly after minority, while the influence and control may be supposed still, to subsist. The leading cases on this point are cited below.' ' See Hug^enin v. Baseley, and notes, 2 Boyd v. De La Montagnie, 73 N. Y. 498; W. & T. Lead. Cas. in Eq. 1156, 4th S. C. 29 Am. Rep. 197. Am. ed. Darlington's Appeal, 86 Pa. St. 512; S. ^ Husband and wife : C. 27 Am. Rep. 726. Haydock v. Haydock, 34 N. j. Eq. 570; Shipman v. Furniss, 69 Ala, 555; S. C. S. C. 38 Am. Rep. 385- 44 Am. Rep. 528. FRAUD. 71 Sec. 39. Constructive fraud as to wills. The doctrine of constructive fraud does- not apply to a MVUV In Tyson v. Tyson's Exrs., 37 Md. 583, it is said : " The influence which is undue in cases of gifts inter vivos, is very Affianced parties : Kelly V. McGrath, 70 Ala. 75; S. C. 45 Am. Rep. 75. Butler V. Butler, 21 Kans. 521; S. C. 30 Am. Rep. 441. Hamilton v. Smith, 59 Iowa, 15; S. C. 42 Am. Rep. 39. Hall V. Carmichael, 8 Baxt. 211 ; S. C. 35 Am. Rep. 696. <3ilmore v. Burch, 7 Oreg. 374; S. C. 33 Am. Rep. 710. Pierce v. Pierce, 71 N. Y. 154; S. C. 27 Am. Rep. 22. Kline v. Kline 57 Pa. St. 120, 98 Am. Dec. 206. "WoUaston v. Tribe, L. R. 9 Eq. 44 Talk V. Turner, loi Mass. 494. Rockafellow v. Newcomb, 57 111. 186 (case of man complaining of woman.) Russell's Appeal, 75 Pa. St. 279. Par en t and child : Wood V. Rabe, 96 N. Y. 414; S. C. 48 Am. Rep. 640. Bainbridge v. Browne, 44 L. T. Rep. (N. s.) 705. Noble's Adm'r v. Moses, 81 Ala. 530; S. C. 60 Am. Rep. 175. Contra as to grandparent and grand- child : Cowee V. Cornell, 75 N. Y. 91; S. C. 31 Am. Rep. 428. Persons in loco parentis : Berkmeyer v. Kellerman, 32 Ohio St. 239; S. C. 30 Am. Rep. 577. £xecutor and legatee : JLeach v. Leach, 65 Wis. 284, 26 N. W. Rep. 755. Administrator and distributee : Williams v. Powell, 66 Ala. 20; S. C. 41 Am. Rep. 742. Brother and sister ; Gillespie v. Holland, 40 Ark. 28; S. C. 48 Am. Rep. i. Physician and patient : Popham V. Brooke, 5 Russ. 8. Dent V. Bennett, 4 My. & Cr. 269. Billage v. Southee, g IJare, 534. Cadwallader v. West, 48 Mo. 483. Crispell v. Dubois, 4 Barb. 393. Woodbury V. Woodbury, 141 Mass. 329; S. C. 55 Am. Rep. 479. Contra . Audenreid's Appeal, 8g Pa. St. 114; S. C. 33 Am. Rep. 731. Guardian and ward ; Ferguson v. Lowery, 54 Ala. 510; S. C. 25 Am. Rep. 718. Bickerstaii v. Marlin, 60 Miss. 509; S. C. 45 Am. Rep. 418. Equitable wardship : Jacox V. Jacox, 40 Mich. 473: S. C. 29 Am. Rep. 547. Attorney and client : Dickinson v. Bradford, 59 Ala. 581; S. C. 31 Am. Rfep. 23. Stout V. Smith, 98 N. Y. 25; S. C. 50 Am. Rep. 632. . Minister and parishioner, or relig- ious adviser and disciple ; Norton v. Relly, 2 Eden, 286. Connor v. Stanley, 72 Cal. 556; S. C. i Am. St. Rep. 84. Finnegan v. Theisen, Mich. '52 N. W. Rep. 619. ' Bancroft v. Otis, 91 Ala. 279; S. C. 24 Am. St. Rep. 904. Smith's Will, 95 N. Y. 523. Tyson v. Tyson's Exrs., 37 Md. 583. Parfitt V. Lawless, L. R. 2 P. & D. 462. Mackall v. Mackall, 135 U. 6. 167. Wheeler v. Whipple, 44 N. J. Eq. 142. Post V. Mason, gi N. Y. 539. 72 PAROL EVIDENCE. different from that which is required to set aside a will. In the former the natural influence which such relations as those in question involve, is considered undue, provided it is exerted to obtain a benefit for themselves, whereas in the case of a will the influence which the law considers as unlawful must be such as amounts to force and coercion, -destroying the free agency of the testator." Contra: Jackson v. Ashton, ii Pet. 255. Greenfield's Estates, 12 Harris, 232. Agent and principal : Hall V. Knappenberger, 97 Mo. 509; S. C. 10 Am. St. Rep. 337. Contra as to mere confidential friends : Pressley v. Kemp, 16 S. C. 334; S. C. 42 Am. Rep. 635. Hemingway v. Coleman, 49 Conn. 390; . S. C. 44 Am. Rep. 243. The most singular case under this head is Lyon v. Home, L. R. 6 Eq. 653 (a. d. 1868), which was a suit to set aside trans- fers of stock and a mortgage, of the value of ;^6o,ooo, made by a childless widow, above seventy years of age, to a spiritual- istic medium of the male sex, who per- suaded theplaintiif to execute the transfers under the influence of communications which he pretended to have received from the spirit of her dead husband, indicated by rappings, and which informed the widow that the spirit loved the defendant and that he was his son, and charged her to make him hers. The widow appears to have been superstitious, credulous and affectionate; also ignorant, for she spoke of the defendant's aristocratic friends as "them high folks." She even at one time ' ' contemplated the possibility of warmer relations'' than the parental and filial. At one time he offered to return to her a check of ;^5o which she had given him, but finally consented to keep it, as reluctantly as Ca;sar took the kingly crown upon the Lupefcal. He finally took her name instead of her taking his. She put her arm around his neck and fondled him while the parchments were being read* The heavenly voice kept urging her t» love Charles. She had always had a vision of a son like this with golden hair. On one occasion when ;^24,ooo were trans- ferred to him, ' ' there were no manifesta- tions," swore the defendant, but on their way to the city in a cab, " the plaintiff sat very near me, with my hands in hers, under her shawl, all the way to the city," 'and she spoke of the conjuror at the broker's ofiice as her adopted son. ' ' This, without more," says the vice-chancellor, " is in my judgment enough to throw upon the defendant the onus of proving that plaintiff 's acts were the pure, voluntary, well-understood acts of her mind, unaf- fected by the least spark of imposition or undue influence, or as Lord Eldon has expressed it, " acts of rational considera- tion, of pure volition, uninfluenced.'" The vice-chancellor winds up by saying : "The system . as presented by the evi- dence, is mischievous nonsense, well cal- culated, on the one hand, to delude the vain, the weak, the foolish and the super- stitious ; and on the other to assist the projects of the needy and the adventur- ers; and lastly, that beyond all doubt there is plain law enough and plain sense enough to forbid and prevent the retention of acquisitions such as these by any medium , whether with or without a strange gift ; and that this should be so is of public concern, and to use the words of Lord Hardwicke, 'of the highestpublicutility. " Home was undoubtedly the ablest con- jurer since Cagliostro. MISTAKE. Tit CHAPTER IX. Mistake. Sec. 40. As to collateral facf. 41. In deeds. 42. Mistake of fact by insurer. 43. Reformation for mistake of fact. 44. Reformation for mistake of law. Sec. 40. Mistake as to collateral matter. A mutual mistake as to a fact wholly collateral and not affecting the essence of the contract will not invalidate the contract. Illustration : Thus a mutual mistake as to the health of a horse, is not a ground for rescinding a contract of purchase." In this case the court said : " Such an error or mistake as that ii> no way affects the validity of the contract. In a case where- there is a mutual mistake of the parties as to the subject matter of the contract, or the price and terms, going to show the want of a consensus ad idem, without which no contract can arise, such a defense maybe made. But here the mistake of the defendants- were in relation to a fact wholly collateral, and not affecting the essence of the contract itself The vendees cannot escape from the obligations of their contract because they have been mis- taken or disappointed in the quality of the article purchased. In the absence of a warranty the principle of caveat emptor applies,, and the buyer takes the risk of quality upon himself" Sec. 41. As to deeds. Evidence of mere mistake is incompetent at law to> contradict a deed. Illustrations : As to quantity of land." Or to show a differ- • Wheat V. Cross, 31 Md. 99: S. C. i Kerr v. Calvit, Walker, 115; S. C. I2r Am. Rep. 28. Am. Dec. 537. ' Jackson v. Bowen, i Cai. 358; S. C. 2 Clarke v. Lancaster, 36 Md. 196; S. C. Am. Dec. 193. 11 Am. Rep. 486. Howes V. Barker, 3 Johns. 506; S. C. Dale v. Smith, i Del. Ch. i; S. C. iz 3 Am. Dec. 526. Am. Dec. 64. 74 PAROL EVIDENCE. €nt limitation.' Or to show omission of a covenant.^ Or to show a different location.' Or as to name.* Or to show that it was intended as a mortgage.^ Sec. 43. As to insurance policies. Parol evidence is competent to show a mistake either of insertion or omission, made by an insurer, in the appli- cation or in the policy, even in an action to enforce the policy, on the ground of estoppel. It is extremely familiar doctrine, that where an insurance •company sets up a false answer of the insured to questions in the application, as a defense to an action on the policy, and as con- stituting a breach of warranty in the policy, the insured may show by parol that he made true and correct answers, and that the agent of the insurer set down his answers incorrectly. The authorities to this proposition are exceedingly numerous, and are based on the theory of estoppel.' Limitation : But evidence of a mere mistake in an insurance policy is not admissible at law in the absence of estoppel and "waiver. ' Holmes V. Simons, sDesaus. 149; S. C. 4 Am. Dec. 606. ' Christ V. Diffenbach, i S. & R. 464; S. C. 7 Am. Dec. 624. » Hartt V. Rector, 13 Mo. 497; S. C, 53 Am. Dec. 157. ' Pitts V. Brown, 49 Vt. 86; S. C. 24 Am. Rep. 114, • Inhab. of Reading v. Inhab. of Weston, 8 Conn. 117; S. C. 20 Am. Dec. 97. Hale V. Jewell, 7 Greenl. 435; S. C. 22 Am. Dec. 212, * Moliere v. Penn. F. Ins. Co., 5 Rawle, 342; S. C. 28 Am. Dec. 675. Manhattan Ins. Co. v. Webster, 59 Pa. St. 227; S. C. 98 Am. Dec. 332; North Am. F. Ins. Co. v. Throop, 22 Mich. 146; S. C. 7 Am. Rep. 638. Plumb V. Catt. M. Ins. Co. 18 N. Y. 394 ; S. C. 72 Am. Dec. 526. Anson v. Winnesheik Insurance Co. 23 Iowa, 84. Malleable Iron Works v. Phoenix Ins. Co. 25 Conn. 465. Hough V. City F. Ins. Co. 29 Conn. 10. N. E. F. & M. Ins. Co. v. Schettler, 38 111. 166. Patten v. Merchants' and Farmers' Fire Ins. Co. 40 N. H. 383. Columbia Ins. Co. v. Cooper, 50 Pa. St. 331. ./Etna Live Stock, etc., Ins. Co. v. Olm- stead, 21 Mich. 246. Woodbury Savings Bank v. Charter Oak Ins. Co. 31 Conn. 517. Ins. Co. V. Williams, 39 Ohio St. 584; S. C. 48 Am. Rep. 474. Planters' Ins. Co. v. Sorrels, i Baxt. 352; S. C. 25 Am. Rep. 780. Planters' Ins. Co. v. Myers, 55 Miss. 479; S. C. 30 Am. Rep. 521. Lycoming Fire Ins. Co. v. Jackson, 83 111. 302; S. C. 25 Am. Rep. 386. Flynn v. Equit. L. Ins. Co. 78 N. Y. 568; S. C. 34 Am. Rep. 561. Grattan v. Met. L. Ins. Co. 80 N. Y. 281; S. C. 36 Am. Rep. 617; 92 N. Y. 274; S. C. 44 Am. Rep. 372. McCall v. Phoenix Ins. Co. 9 W. Va. 237; S. C. 27 Am. Rep. 558. MISTAKE. (0 Illustrations : I. In Cooper v. Farmers' M. F. Ins. Co., 50 Pa. St. 299; S. C. 88 Am. Dec. 544, an action on a fire insurance policy, the defense was breach of warranty against incumbrances, by reason of judgments. On the trial the plaintiff offered evi- dence that ,he told the agent of the company, who filled up the application, that there were judgments against him, but that he "] id. 283 ; Can- edy V. Marcy, 13 Gray, 373.) In no case will reformation be given on the ground of mistake, unless it be so done as to repre- sent the agreement as understood when made by all the parties to it having an interest in the subject-matter involved in the de- termination. It is quite evident that the plaintiff was advised of the terms of the instruments of assignment when she executed them, and the evidence permits the conclusion that her mistake as to the legal effect of the assignment was produced by the information and advice given by the person who presented it to her for execution, that to render it effectual as collateral security it was necessary that its terms should be absolute. The plaintiff was not present when the negotiation which resulted in the assignment was had. The assignee, Gibson, was a banker resid- ing at Lima, N. Y. He was also the agent of the insurance com- pany referred to, and as such issued the two policies. With a 92 PAROL EVIDENCE. view to obtaining the security he went to Avon, where the other parties resided, and there met John R. and Charles H. Marsh, and made with them the agreement to assign to him the policies as security for such liabilities of Charles to him, amounting to $500. Hosmer, a lawyer, was present, and at the request of those parties drew the papers, but before doing so he said to them, that although the assignment was intended as collateral security, it must be in form absolute, and drew it accordingly. It was then executed by Charles and John R. Marsh. And Hosmer was then requested to go to the plaintiff's house and get her to sign it. He applied to her and she declined to execute the instrument, and after returning to the other parties and informing them of her refusal, he, at the request of some one of them, repeated his application to her for its execution. He then represented to her that the assignment was only as collateral security for the amount mentioned in it, and that to render it effectual as such security it must be absolute in terms, because the insurance company would not allow or recognize it if otherwise than so made. It may have been found upon the evidence as a fact that the parties under- stood frjim the information so received that the absolute terms were essential to the transfer of the policies as security ; that such feature was peculiar to life policies, and that they believed, when they made it, that the assignment as made might be effectual as security merely. In this view there was a mutual mistake of fact, which excluded from the written assignment the provision expressing the purpose for which it was made. And while there was no mistake of the legal import of the contract as actually made, a mistake of law, as well as of fact, prevented the insertion in the written instrument of the contract as so made', all of which resulted from the advice and act of the lawyer and scrivener who transacted the business for the parties other than the plaintiff. " While in view of the rule which has generally been declared in this state, the question may not be free from doubt, we are inclined to think that such state of facts was sufficient to support equitable relief. (Story Eq. Jur., sec. 115; Pom. Eq. Jur., sec. 845; Monne v. Ayer, 30 J. & S. 139; Hunt v. Rousmaniere, i Pet. I, 13; Maher v. Hibernia Ins. Co., 6-j N. Y. 283 ; Meyer v. Lathrop, 73 id. 315; Stone v. Godfrey, 5 DeG. M. & G. ^6\ Broughton v. Hutt, 3 D. G. & J. 500; Griffith v. Townley, 69 Mo. 13 ; 33 Am. Rep. 476.) It is difficult to lay down any rigid rule which will embrace all the cases that come within equitable MISTAKE. 93 cognizance for relief of the character of that in question. While to justify it the mistake must be mutual, and the mere mistake of the legal import of a written instrument is not sufficient, there are many other considerations dependent upon deductions from evidence which may permit relief. They may arise from impo-, sition, misrepresentation, concealment, undue influence, misplaced confidence, surprise or other inequitable conduct in the transaction. It will be observed that upon the evidence the conclusion was permitted that the sons of the plaintiff had not nor did either of them have any authority to, represent the plaintiff in the making of the contract to assign the policy in question for any purpose,, that the attorney Hosmer represented and aicted for those three parties in what he did, and in no sense represented the plaintiff; that when he came to her with the assignment and stated to her that it was, in fact, and had the effect of collateral security, he still represented them, and that by such representation she was induced to understand that the character and legal effect of the assignment executed by her was as such security for the sum mentioned. And although it may be that the attorney was requested by one of the Marsh parties to get the signature of the plaintiff to the paper, it was done in the presence and with the knowledge of Gibson, and in aid of the common purpose of the parties there, and in the work for which the attorney was appar- ently engaged by them. It would therefore seem that the plain- tiff may not have executed the instrument voluntarily upon her own judgment of its character, but upon the representation so made to her in that respect. In that view, although Gibson may have believed that the legal effect of the assignment was such as to effectuate the understanding that it should be as security merely, the conclusion is justified that the execution of it by the plaintiff was the result of misrepresentation for which he was in some degree chargeable, and 'for that reason the evidence pre- sented a question of fact for consideration upon the merits in sup- port of the plaintiff's claim for relief. (Tyson v. Passmore, 2 Penn. St. 122.) Then in view of the fact that the policies by their terms recognized the right to transfer and hold them as security, and that Gibson was the agent of the insurance com- pany, and as such countersigned and issued them, the inference was permitted that he knew of such provision when the agreement and assignment were made, which might also lead to the con- clusion that when in his presence the attorney was requested to 54 PAROL EVIDENCE. advise the plaintiff that the assignment was as security only, he permitted the information to be given her that such was the nature and effect of the assignment. This might be treated as a concealment from her of such provision of the policies of which ihe plaintiff says she had no knowledge. And that by that means she was induced to rely upon the representation and execute to him the instrument, which in equity might be characterized as fraud, and as such furnish ground for relief. (Cook v. Nathan, i6 Barb. 342; Waring v. Somborn, 82 N. Y. 604; Welles v. Yates, 44 id. 525; Kilmer v. Sriiith, ^y id. 226.) For the purpose of this review it is only necessary to determine whether there was any evidence which 'required the consideration of the case on the merits. In reaching the conclusion upon that proposition in the affirmative, we do not intend to express any opinion of the result which the trial court should reach, but only that the evidence was such as to present a question of fact for the determination of the trial court, and sufficient as furnished by the record here to sup- port a conclusion for relief in favor of the plaintiff." 9. In Conkling v. Davis, 14 Abb. N. Cas. 499, it was held, at special term, that a court of equity will relieve a party from the effect of a voluntary settlement in trust for the settlor for life, with remainders over, and reserving no power of revocation, where it appears that although the settlor received proper profes- sional advice from her attorneys who drew the deed, and who were the trustees themselves, she did not comprehend its effect, nor intend to make an irrevocable deed of her property.' Contrary authorities : It has been held that equity will not •relieve against a mistake in a deed of a married woman, which was inoperative for want of a statutory requirement." Nor the omission to mention a. factor's lien in a receipt for property with an agreement to deliver it.^ Nor a mistaken belief as to a right to redeem from a mortgage.* Nor a mistake as to the legal effect of a note.' It was here said : " It must be shown that words were inserted that were intended to be left out, or that Words were omitted which were intended to be inserted." " A mistake as to the legal effect of words inserted designedly in a written instru- ' Citing Gurnsey v. Mudge, 24 N. J. Hall v. Hall, L. R. 8 Ch. App. 430. Eq. 243. ' Gebb v. Rose, 40 Md. 387. See Mr. Austin Abbott's note to the Dickinson v. Glenney, 27 Conn. 104. principal case. " Potter v. Sewall, 54 Me. 142. Gibbes v. N. Y. L. Ins. Co., 67 How. * Mellish v. Robertson, 25 Vt. 603. Pr. 207. ' Heavenridge v. Mondy, 49 Ind. 434. MISTAKE. 95 ment gives no right to a reformation of such instrument." So relief was refused where the intention was to convey land to a man's wife and children, but it was conveyed by mistake to her and her heirs.' There the court said • " If a party designs to and performs an act, under a mistaken view of the law affecting the transaction, he is held to the obligation incurred." So when the intent was to execute a delivery bond to an officer, and the bond bound the obligor to pay the judgment." " Some person must suffer, and the law wisely, though sometimes with great apparent hardship, leaves it for him to suffer who committed the mistake." " Nothing is better settled than the rule which pre- cludes a party from proving that he misunderstood the legal effect of a written contract, which has been duly executed and delivered by him, where there is no allegation of fraud by which he was misled or deceived."' "Words must not be forced away from their proper signification to one entirely different, although it might be obvious that the words used, either through ignorance or inadvertence,expressed a very different meaningfrom that intended. * * * For if the words employed were those intended to be used, but their actual meaning was totally different from that which the parties supposed and intended them to bear, still their actual meaning would generally, if not always, be held to be their legal meaning. 2 Pars. Cont. 494, 496." Limitation where party accepts deed with knowledge of defect. — But where a party accepts a deed with knowledge that a condition orally agreed uppn has been omitted, this furnishes no ground for reformation. Illustration : In Shenandoah, etc., R. Co. v. Dunlop, 86 Va. 346, the court said : " The authorities all agree that equity has jurisdiction to reforrn written instruments in two well-defined classes of cases only, viz. : (i) Where there has been an innocent omission or insertion of a material stipulation contrary to the intention of both parties, and under a mutual mistake ; and (2) where there has been a mistake of one party accompanied by fraud or other inequitable conduct of the remaining parties. But so great and obvious is the danger of permitting the solemn engagements of parties, when reduced to writing, to be varied by parol evidence, that in no case will rehef be granted except where there is a plain mistake, clearly made out by satisfactory ' Goltra V. Sanasack, 53 111. 457. ^ Winslow v. Driskell, g Gray, 363. ' Moorman. v.. Collins, 32 Iowa, 138. 96 PAROL EVIDENCE. and unquestionable proofs. According to some of the cases there must be a certainty of the error. At all events, the party alleging the mistake, must show by evidence which leaves no doubt upon the mind, of the court, not only exactly in what the mistake consists, but the correction that should be made. And where, as in the present case, such evidence is not pro- duced, relief should be unhesitatingly denied. A rule less rigid would be fraught with infinite mischief, since it would be destructive of the certainty and safety of written contracts. Of course the danger in reforming a written contract is not as great where the alleged mistake is made out by a preliminary written instrument or agreement, as where parol evidence only is. admitted. But even in such a case, said the court in Carter v. McArtor, 28 Gratt. 356, it must be made plainly to appear that the parties intended, in their final instrument, merely to carry into effect the arrangement set forth in the prior agreement. ' The very circumstance,' it was added, ' that the final instrument differs from the preliminary contract, affords of itself a presumption of an intentional change of purpose or agreement, unless there is some recital in it, or some other attendant circumstance, which demonstrates that it was merely in pursuance of the original, contract.' " This action was brought for the reformation of a deed of a right of way. The contract for the deed was in writing, and provided that the railroad company was to provide proper wagon- ways across the tracks on the grantors' land. This was omitted from the deed, the draftsman, who was the agent of the company, informing the grantors, on their objecting to the omission, that " it was not customary to insert unusual conditions in such deeds." The deed was executed, as the court said, " with a full and clear understanding of its contents," and this being so, " there was obviously no mistake or misapprehension on the part of the complainants, and consequently no ground for the reforma- tion of the deed. * * * And as to the alleged verbal agree- ment, contemporaneous with the execution of the deed, that the terms of the preliminary contract should remain in full force, it is enough to say that nothing is better settled, either at law or in equity, than that in the absence of fraud, accident, or mistake, the deed must be conclusively presumed to contain the whole agree- ment between the parties. In other words, the terms of the deed cannot be varied, by parol evidence, of what occurred MISTAKE. 97 between the parties previously thereto, or contemporaneously therewith." Limitation where money is paid under mistake of fact. — But it is generally held that money paid voluntarily under a mutual mis- take of law, but with full knowledge of the facts, cannot be recovered. Illustrations : In Burkhauser v. Schmitt, 45 Wis. 316; S. C. 30 Am. Rep. 740, the plaintiff, proposing to buy of the defendant his interest in certain lands, was informed of all the facts affecting the title. An attorney acting for both parties, upon considera-. tion of those facts, advised the parties that the defendant had a certain interest in the lands. The plaintiff acting upon that advice purchased the supposed interest. This advice being incor- rect, held, that the mistake was one of law only, and the plaintiff could not recover back the purchase-mOney. This was decided without much expressed consideration, on the authority of Hurd V. Hall, 12 Wis. 113, but that decision was put on the grounds of ignorance of fact and failure of consideration, and the court said obiter, " It is only against mistakes of fact that courts will grant relief." Adams says on this point ( Equity, 189) : " The rule at law is clear, that money paid by a man with full knowledge of all the circumstances, or with the means of such knowledge in his hands, cannot be recovered back again on account of such payment hav- ing been made in ignorance of the law." (Citing Bilbie v. Lumley, 2 East. 469). The principle ought to be the same in equity. And again, he says, that subject to the exception which may exist in the case of one's having " given up a portion of his undisputable property under the name of a compromise," it seems now to be clearly established that in equity as well as at law, a mere mistake of law, where there is no fraud or trust, and no mistake of fact, is immaterial. Mr. Pomeroy says : " It is settled at law, and the rule has been followed in equity, that money paid under a mistake of la'^ with respect to the liability to make payment, but with full knowledge or with means of obtaining knowledge of all the cir- cumstances, cannot be recovered back." ' But he observes in a note that " If the doctrine formulated in § 849 be correct, then it seems that this particular rule forbidding the recov- ' 2 Pom. Eq. Jur. § 851. 98 PAROL EVIDENCE. ery back of money paid under a mistake of law, is based upon an erroneous conception of the principle which shoiild govern such cases ; and the opinions of those jurists which uphold the right of recovery, quoted ante, in the note under § 841, appear to be correct in principle. This rule itself is an illustration of the disinclination of equity courts to depart from a doctrine settled at law, where the rights and the remedies are the same in both juris- dictions." The doctrine thus laid down by Adams and Pomeroy is sustained by a long list of American authorities (2 Pom. Eq. Jur. § 842, n.) from some seventeen States. Pollock says (Cont. 397) : " Money paid under a mistake of law cannot in any case be recovered ; nor does anything like the qualification laid down by Lord Westbury in Cooper v. Phibbs 16 L. T. Rep. (N. S.) 683, appear to be admitted. Ignorance of par- ticular rights, however excusable, is on the same footing as ignorance of the general laws." Where a widow, under mistake as to her rights in her husband's estate, renounced the provision made for her by his will, and elected to take her dower, but after the statutory period for making her election, applied to be allowed to recall her election and take under the will, the application was allowed.' " There is quite sufficient authority to show that a renunciation of rights under a mistake as to particular applica- tions of law is not conclusive, and some authority to show that it is the same even if the mistake is of a general rule of law." ' ' Evans' Appeal, 51 Conn. 435. ' Pollock Cont. 395. Macknet v. Macknet, 29 N. J. Eq. 54. MODIFICATION, DISCHARGE, ETC 99 CHAPTER X. Modification, Discharge, Substitution, Waiver. Sec. 45- General rule. 46. Exception as to sealed instruments at law. 47. Discharge of sealed contract. 48. Waiver as to insurance policies. Sec. 45. Creneral rule. Evidence of a parol agreement-is admissible to extend the time or change the place or manner of performance of a prior unsealed written contract, and before breach thereof and for a new consideration to waive, vary, discharge or annul it, or any provision of it.^ Illustrations : i. Lord Denman, in Goss v. Lord Nugent, 5 B. and Add. 63, lays down the rule: "After the agreement is reduced to writing, it is competent for the parties, at any time before breach of it, by a new contract, not in writing, either altogether to waive, dissolve or annul the former agreement, or ' Keating v. Price, i Johns. Cas. 22 ; S. C. I Am. Dec. 92. Solomons v. Jones, 3 Brevard, 54 ; S. C. 5 Am. Dec. 538. LeFeyre v. LeFevre, 4 S. & R. 241 ; S. C. 8 Am. Dec. 696. Spann v. Baltzell, I Fla. 301 ; S. C. 46 Am. Dec, 346. Bryan v. Hunt, 4 Sneed, 543 ; S. C. 70 Am. Dec. 262. Deshazo v. Lewis, 5 Stew. & Port. 91 ; S. C. 24 Am. Dec. 769. Cummings v. Arnold, 3 Mete. 486 ; S. C 37 Am. Dec. 155. Emerson v. Slater, 22 How. 42. Piatt V. U. S. 22 Wall. 507. Vicary v. Moore, 2 Watts, 451 ; S. C. 27 Am. Dec. 323. Baker V. Whitesides, Breese, 174 ; S. C. 12 Am. Dec. 168. Morgan v. Butterfield, 3 Mich. 623. Perrine v. Cheeseman, 6 Halst. 174 ; S. C. 19 Am. Dec. 388. Conrad v. Fisher, 37 Mo. App. 352. Phelps V. Seely, 22 Gratt. 573. < Akers v. Hite, 94 Pa. St. 394 ; S. C. 39 Am. Rep. 792. Palmer v. Fogg, 35 Me.' 368 ; S. C. 58 Am. Dec. 708. Grange v. Palmer, 56 Hun, 481. Woolner v. Hill, 93 N. Y. 576. Viele V. Germania Ins. Co. 26 Iowa, 9 ; S. C. 96 Am. Dec. 83. Juilliard v. Chaffee, 92 N. Y. 529. Courtenay V. Fuller, 65 Me. 156. Allen V. Sowerby, 37 Md. 410. Malone v. Dougherty, 79 Pa. St. 46. McCauley v. Keller, 130 Pa. St. 53 ; S. C. 17 Am. St. Rep. 758. Morrissey v. Schindler, 18 Neb. 672. 100 PAROL EVIDENCE. in any manner to add to, subtract from, or vary or qualify the terms of it, by a new contract not in writing, which is to be proved partly by the written agreement and partly by the subsequent verbal terms engrafted upon what will thus be left of the written agreement." In Bryan v. Hunt, 4 Sneed, 543 ; S. C. 70 Am. Dec. 262, it was said : " To admit evidence of a subsequent parol agreement, for the purpose of showing an abandonment, discharge or alteration of the terms of a previous written agreement not under seal, would not be to affect or dissolve the agreement by matter of an inferior nature." 2 In Holloway v. Frick, — Pa. St. — , 24 Atl. Rep. 201, the court observed : " It is claimed that as no fraud or mistake is- alleged, it was not competent to vary this contract by parol evi- dence. The principle, however, has no proper application to the present case. It is always competent for the parties to a written contract to show that it was subsequently abandoned in whole or in part, modified, changed, or a new one substituted ; and this may be shown by parol, by showing either an express agreement, or actions necessarily involving the alteration. In the present case the plaintiff, the defendant, and one Howe entered into partnership in April, 1887, and by the written terms of agreement plaintiff was to furnish one-fourth of the capital, each of the others three- eighths, and the profits were to be divided in the same ratio. Plaintiff claimed that this agreement was never carried out, and that by the terms of the partnership actually entered into, the interest of each partner was one-third. It is the admission of evidence to sustain this claim that is argued to be the error. But such evidence was clearly competent. It was 'not offered to contradict or vary the contract shown in the writing. On the contrary, plaintiff's contention was that the writing represented correctly the contract as it was at the time, but that it was subse- quently altered, and he gave as the reason for the alteration the original expectation that two other parties, Barr and Coxe, were each to have an eighth interest, to be deducted from the interests of defendant and Howe, so that each of the three nominal partners should have an equal one-fourth, and the two silent partners the other fourth between them. The two others however did not come into the enterprise, and plaintiff's conten- tion was that the written agreement was then modified to the extent that the shares of the three partners were still to be equals but thirds instead of quarters. This was not contradicting the. MODIFICATION, DISCHARGE, ^TqKJ ''\/, 101 writing, but showing a subsequent modification of the contract contained in it. Such evidence was competent." 3. An invalid contract may be made valid by subsequent parol agreement. Thus a usurious contract may be changed by subsequent agreement into a valid contract.' 4. Upon this principle it has been held that an open policy of insurance may be modified by parol before loss, even when the policy provides in substance that it may only be done by indorse- ment on the policy.^ 5. The time of performance may be extended by parol.' 6. The amount of rent fixed by an unsealed written lease may be shown to have been reduced by a subsequent executed ■oral arrangement.* And so of a premature cancellation of the term.' As to necessity for new consideration : In Brown v. Everhard, 52 Wis. 205, it was held that no new consideration was necessary; and in Thomas v. Barnes, — Mass. , 31 N. E. Rep. 683, the ■court said : " The contract, when modified by the subsequent oral agreement, is substituted for the contract as originally made, and the original consideration attaches to and supports the mddi- fied contract." Limitations : But evidence of a parol contemporaneous priv- ilege to revoke the written agreement is inadmissible.' Illustrations : Thus it has been held that parol evidence was not admissible to prove that an absolute written assignment of a land contract was afterward rescinded or agreed to be held as security for debts due from the assignor to the assignee.' Or to prove that a contract silent as to time of performance was to be performed in a time which the law would not deem reasonable.' Sec. 46. Exception as to sealed instruments. This rule does not apply to Sealed instruments, at law^, but it is otherwise in equity. ^ ' DeWolf V. Johnson, 10 Wheat. 367. ■• Nicoll v. Burke, 78 N. Y. 585. " Day V. Mechanics' etc. Ins. Co., 88 » Hope v. Balen, 58 N. Y. 380. Mo. 325; S. C. 57 Am. Rep. 416. ' Wemple v. Knopf, 15 Minn. 440; S. Kennebec Co. v. Augusta Ins. Co., 6 C -^ Am. Rep. 147. Gray, 204. , ' Richardson v. Johnson, 41 Wis. 100; Canal Co. v. Ray, loi U. S. 522. 22 Am. Rep. 712. ' Keating v. Price, I Johns. Cas. 22; S. ^ Liljengren Furniture & L. Co. v. Mead, C. I Am. Dec. 92. 42 Minn. 420. JBaker v. Whitesides, Breese, 174; S. C. 12 Am. Dec. 168. 102 PAROL EVIDENCE. Illustrations : i. Thus it does not apply, at law, to leases ;•- nor to agreements for sale of land;^ nor to a covenant in a writing.' 2. Dwight, C, says in Pechner v. Phoenix Ins. Co., 65 N. Y. 207 : " As a result of all the cases and of sound principle, I think it clear that a condition required by a written instrument, not under seal, that an act be performed or evidenced by a statement in writing, may be waived by parol ; and that from necessity the acts going to establish waiver may be shown by parol evidence ;. . and that while on technical grounds this doctrine has not been extended, in some cases in courts of law, to such clauses in sealed instruments where a mere parol license has been given, yet that even in such a case a parol license may be upheld in equity on the theory of an equitable estoppel." The point of the decision was that a condition in a fire policy that it should be avoided by other subsequent insurance, without consent of the company written on the policy, should avoid the policy, may be waived by oral consent. Dwight, C, further said that the ordinary rule excluding parol evidence " has no application where the validity or existence of the contract itself is in question. * * * jjj^ whole contest is upon the validity or invalidity of the contract, and the sole point is, can a condition precedent be waived by the words or acts of the parties. That is simply an inquiry whether a party can, by his own acts, be precluded from setting up a con- dition inconsistent with his acts, to the injury of an opposite party, whom he has thus misled. * * * The defendant must then contend that if parties, when they enter into a contract not required by law to be ni writing, provide for a particular mode of proving for the performance of an act, they cannot, by subse- quent acts or arrangements, vary from it. The contract thus :)ecomes an iron bond, binding both parties even against their joint will. Such a conclusion is little less than absurd." Rule ill equity : i. But in Canal Co. v. Ray, loi U. S. 522, it is held that in equity the terms of a sealed contract maybe varied by a subsequent parol agreement. This the court held " notwith- standing what is said in some of the old cases," and declaring^ that " the rule in equity is undoubted," citing Dearborn v. Cross, 7 Cow. 48 ; LeFevre v. LeFevre, 4 S. & R. 241 ; Fleming v.. ' Roe V. Harrison, 2 T. R. 425. Coe v. Hobby, 72 N. Y. 141. Macher v. Foundling Hospital, i V. & ° Heth v. Wooldridge, 6 Rand. 605. B. 188. * Littler v. Holland, 3 T. R. 590. MODIFICATION, DISCHARGE, ETC. 103 Gilbert, 3 Johns. 528. In the first case cited, an action on a note a bond collateral was held discharged by a subsequent executed parol agreement. The court said : " It is not necessary to decide that a parol agreement to rescind a sealed contract is binding as an executory agreement." In the second, an action of trespass, parol evidence was admitted to show an executed oral agreement to change the route of a water-course granted by deed. Here the court said : " A party may be permitted to prove by parol evidence that after signing a written agreement the parties made a verbal agreement varying the former ; provided their variations have been acted upon, and the original agreement can no longer be acted upon without a fraud on one party." In the third case cited it was held that the time for performance of a bond may be enlarged by parol, and evidence of an oral agreement to waive further performance was admissible. So in Lattimore v. Harsen, 14 Johns. 330, a covenant was held well released by parol, and in Burt v. Saxton, i Hun, 553, it was held competent to show an oral extension of the time of payment of a sealed instrument. 2. In San Remo Hotel Co. v. Brennan, 64 Hun, 607, an action for injunction to restrain the defendant from dispossessing the plaintiff from a hotel occupied under a sealed lease, it appeared that the rent specified in the lease was $6,000 a month. Parol evidence was admitted to show that occupation was to be given October ist, 1891, but the premises being then unfinished, Brennan agreed, by parol to reduce the rent to $3,500 a month up to October 1st, 1892. The court observed: "It is insisted by appellant that the contract set forth in the complaint, being an oral one, intended to reduce the rent reserved in, and in that respect to modify a lease for, ten years, which by statute must be in writing, and to which the parties had affixed their seals, is void at law and may be repudiated by either party, so fai as the oral modification remains unexecuted. In support of this proposition we are referred to the cases of Coe v. Hobby, 72 N. Y. 141 ; Smith V. Kerr, 108 id. 31 ; McKenzie v. Harrison, 120 id. 260 and McCreery v. Day, 119 id. i. In Coe v. Hobby, it was held that a contract or covenant under seal cannot be modified before breach by a parol executory contract. In Smith v. Kerr it was held that a simple executory agreement, without consideration, to alter the terms of an existing unexpired lease in which no breach had occurred, was void. In McKenzie v. Harrison (p. 263) the court said : ' We shall not question the rule that a contract 104 PAROL EVIDENCE. or covenant under seal cannot be modified by a parol unexecuted contract.' These cases however in no way destroy the force oi the rule, sustained by many cases, that 'after the breach of a sealed agreement, it may be modified in any respect, or wholly rescinded, by an executed parol agreement founded upon a sufficient consideration.' Dodge v. Crandall, 30 N. Y. 294, 307. A parol modification of a sealed instrument to be enforceable must be an executed, as distinguished from an executory, con- tract, and it must be a valid binding agreement, founded upon a sufficient consideration. Therefore if the facts here had shown that the landlord had performed all the covenants on his part, and that thereafter the tenant, having entered into possession, had made an arrangement with the landlord for an abatement of the rent secured by a sealed instrument with respect to any portion of the term, notwithstanding such an arrangement an action would be maintainable for the amount stipulated in the sealed lease. This was the question which the Court of Appeals dis- posed of in McKenzie v. Harrison, 120 N. Y. 260, where the landlord, after having reduced the rent and acceptea payment of installments thereof in full * until times are better,' sued for the balance of the installment under the lease for which they had receipted in full, and a verdict was directed in their favor. The court therein said : ' We shall not question the rule that a con- tract or covenant under seal cannot be modified by a parol unexecuted contract. * * * Neither shall we question the views of the court below, to the effect that the alleged oral agree- ment * * * was void and inoperative in so far as it remained unexecuted. The lessors had the right to repudiate it at any time and demand the full amount of rent provided for in the lease ; but in so far as the oral agreement had become executed, as to the payments which had fallen due and had been paid and receipted in full as per the oral agreement, we think the rule invoked has no application.' The question here presented is different from that decided in McKerizie v. Harrison, supra, in that if the facts stated by the plaintiff can be proven upon a trial — that having a; valid claim for damages by reason of the breach of the covenant for occupation and enjoyment on and after Octo- ber first, this claim was waived in consideration of the parol agreement to take a less rent for the first year — such an agree- ment executed on the part of the plaintiff, and partly performed by the defendant by the allowances made for the months of the MODIFICATION, DISCHARGE, ETC. 105 year that have passed, we do not think could have been repudi- .ated. And this, we think, will become apparent if for the purpose •of disposing of the question we assume the plaintiff's facts to be sustained by competent proof. Thus assumed, if the premises were not ready for occupancy on the ist of October, 1 891, and the tenant had gone into partial possession, it could have successfully •defended an action for the rent or have brought a suit in equity for an apportionment. Brown v. Wakeman, 42 N. Y. St. Rep. •677; Kelly v. Miles, 48 Hun, 6. As said by Mr. Justice Daniels, writing the opinion in the case of Kelly v. Miles, supra : 'The •occupancy assured to him ' (the tenant) ' by the lease was the •consideration for his covenant to pay, and to the extent that he was deprived of the ability to occupy by the act of the owner under the authority and assent of the defendants, the plaintiff was entitled to an abatement and apportionment of the rent.' These cases are authority for the position that one who enters into possession of part of premises, all of which has been hired by him, does not thereby waive his right to equitably set off against the rent reserved in the lease the value of the proportion of the premises the possession of which may have been withheld by reason of the failure of the landlord to fulfill the agreement on his part to have them ready for occupancy. They are also .authority for the maintenance of an action such as this, wherein ■it is sought to stay dispossess proceedings against the tenant, where the facts relied upon by the tenant are not available in such proceedings as a defense. We are therefore of opinion that .a parol agreement, such as is asserted by plaintiff and made the basis of his complaint, is not purely executory and one that, therefore, may be repudiated by either party. If, upon a trial, it • can be shown that the premises were unfinished and unfit for occupancy on October first, and that thereby the plaintiff had a valid claim for damages as against the defendant, which, in con- sideration of waiving, was made the basis of an agreement by the • defendant to take a less sum for the year ending October i, 1892, then is presented, within the authorities, a case where a parol agreement, based upon a sufificient consideration, dfter a breach, has been estabhshed, which can be availed of to modify a lease under seal, and which cannot be repudiated if shown to have been executed by one of the parties and partially executed by the other. Even though his view should be in seeming conilict with ;Some of the authorities, we think that the questions presented 106 PAROL EVIDENCE. were serious enough to require their disposition in a more deliberate manner than by affidavits upon a motion, and that it was a proper case to continue the injunction until a trial could be had ; and this for the reason, well expressed by the learned judge, that ' if the injunction is continued until the trial, the- defendant can be fully protected from all loss by a proper under- taking ; whereas, if the injunction is dissolved, and the lease is terminated by dispossess proceedings, the plaintiff will suffer irreparable injury.'" Sec. 47. Discharge of sealed contract. But a contract under seal may be shown to have beea discharged by the performance of a new parol agreement. Illustrations : i. McCreery v. Day, 119 N. Y. i ; S. C. 16 Am. St. Rep. 793. Thus^ oral agreement, on a new consideration, to extend the time of payment of a mortgage on land, is valid.' 2. By an antenuptial agreement under seal a wife agreed to take 80 acres of land after her husband's death in lieu of dower. Afterwards the husband conveyed said land by deed, in which his wife joined, and on the same day he conveyed another 8o-acre tract to a trustee in trust to convey same to his wife if she sur- vived him. It was held, that parol evidence was admissible to show that this conveyance in trust was made as a substitution for the antenuptial agreement.^ Sec. 48. Waiver as to insurance policies. Parol evidence is competent to show a waiver of a breach of a condition or warranty in a policy of insurance,, either on the ground of knowledge of the facts in the agent at the time of issuing the policy, or of such subse- quent conduct on the part of the insurer or its agents as subject the insured to expense and lead him to believe that the breach is waived. Insurance contracts, form an important exception to the general rule that waiver may not be shown after breach,- and it is put on the grounds of estoppel and public policy. This modifi- cation is sustained by the large preponderance of recent authori- ties, although many of the earlier cases were different (such as ' Kane v. Cortesy, lOO N. Y. 132. ' Worrell v. Forsyth (111. Sup.), 30 N. E. 673. MODIFICATION, DISCHARGE, ETC. lOT Barrett v. Union M. Ins. Co., 7 Cush. 175 ; Jenkins v. Quincy M., F. Ins. Co., 7 Gray, 370; Lee v. Howard F. Ins.'Co., 3 Gray, 589 ;. Ripley v. ^tna Ins. Co., 30 N. Y. 136, S. C. 86 Am. Dec. 362 ;, Jennings v. Chenango Co. M. Ins. Co., 2 Denio, 75; Kennedy v. St. Lawrence Co. M. Ins. Co., 10 Barb. 285 ;) some very respectable recent adjudications are in conflict with it, and the' cases cited: and relied on, especially in New York, are decided by a divided: court. It has always been conceded that a warranty in an insur- ance policy, inserted by the agent of the company by mistake or- fraud, might be corrected by resort to a court of equity. Collett. V. Morrison, 9 Hare, 162; In re Universal Non-Tariff Fire Ins.. Co., L. R. 19 Eq. 485 ; Malleable Iron Works v. PhcEnix Ins. Co., 25 Conn. 465 ; Woodbury Savings Bank v. Charter Oak Ins. Co.,.' 31 id. 517; Maher v. Hibernia Ins. Co., 67 N. Y. 283. It has always been conceded that as to a mere representation, not amounting to a warranty, no resort to a court of equity is neces- sary, but parol evidence to show the mistake or fraud might be adduced in an action on the contract itself. State Mutual Ins. Co. v. Arthur, 30 Penn. St. 315. But in regard to warranties, it was early held that parol evidence could not be introduced to- contradict the contract in an action founded on the contract.. Later it has been held that such evidence is admissible to work: an estoppel against the insurer, and this seems now to be the prevalent doctrine. Mr. Wood states the rule as follows : " It is well settled by the weight of authority, that where a policy is issued containing conditions inconsistent with the facts, and the agent knew the facts when the policy was issued, the conditions are waived so far as they conflict with the facts known to the agent; and this is- peculiarly the case where the agent fills up the application erroneously, when the facts were correctly stated to him by the assured." Wood Fire Ins., § 88. Illustrations : i. The most authoritative decision to maintain the principal case is Insurance Company v. Wilkinson, 13 Wall,, 222. There the local agent had inserted in the application a warranty of the age of the mother at the time of her death, which was untrue, but which the agent obtained from a third person, and inserted without the assent of the insured ; this was held to be the act of the company, and not of the insured. The court says: " It is not to be denied that the application, logically con- sidered, is the work of the assured, and if left to himself or such 108 PAROL EVIDENCE. assistance as he might select, the person so selected would be his agent, and he alone would be responsible. On the other hand, it is well known, so well that no court would be justified in shutting its eyes to it, that insurance companies organized under the laws of one State, and having in that State their prin- cipal business office, send these agents all over the land, with directions to solicit and procure applications for policies, furnishing them with printed arguments in favor of the value and necessity of life insurance, and of the special advantages of the corpora- tion which the agents represent. They pay these agents large commissions on the premiums thus obtained, and the policies are delivered at their hands to the assured. The agents are stimu- lated by letters and instructions to activity in procuring contracts, and the party who is in this manner induced to take out a policy, rarely sees or knows anything about the company or its officers I by whom it is issued, but looks to and relies upon the agent who has persuaded him to effect insurance, as the full and complete representative of the company, in all that is said or done in mak- ing the contract. Has he not a right to so regard him ? It is quite true that the reports of judicial decisions are filled with the efforts of these companies, by their counsel, to establish the doctrine that they can do all this and yet limit their responsibility for the acts of these agents to the simple receipt of the premium and delivery of the policy, the argument being that as to all other acts of the agent he is the agent of the assured. This proposition is not without support in some of the earlier decisions on the subject ; and at a time when insurance companies waited for parties to come to th^ m to seek assurance, or to forward appli- cations on their own motion, the doctrine had a reasonable foundation to rest upon. But to apply such a defense, in its full force, to the system of selling policies through agents, which we have described, would be a snare and a delusion, leading, as it has done in numerous instances, to the grossest frauds, of which the insurance companies receive the benefits, and the parties supposing themselves insured are the victims. The tendency of the modern decisions in this country is steadily in the opposite direction. The powers of the agent are prima facie co-extensive with the business entrusted to his care, and will not be narrowed by limitations not communicated to the person with whom he deals. An insurance company establishing a local agency must -be held responsible to the parties with whom they transact busi- MODIFICATION, DISCHARGE, ETC. 109' ness for the acts and declarations of the agent, within the scope of his employment, as if they proceeded from the principal." 2. In Plumb V. Cattaraugus Co. M. Ins. Co., i8 N. Y. 392, the agent prepared the policy and made the survey and measurements, procuring the applicant's signature without any examination on the part of the latter as to their correctness, by representing that he had full authority, to make such surveys and measurements on , behalf of the insurer ; and it was held that assuming the agent's representations to be true, the insurer was estopped from showing a breach of warranty by proof of errors in such survey and appli- cation. The court say: "When the party, through whose acts and representations the other party was induced to enter into the contract, claims the right to show that the facts were different from what he had represented them to be, for the purpose of showing a breach of the warranty, and thus avoiding what would otherwise be a binding contract, and escaping its obligations, I cannot discover why the doctrine of estoppel may not be applied to him, and he be precluded from denying what he once asserted." Three judges dissented. 3. The rule is also supported by Rowley v. Empire Insurance Co., 36 N. Y. 550, in which the Plumb case is treated as having changed the rule in New York, as laid down in Brown v. Catta- raugus Co. Mut. Ins. Co., 18 N. Y. 385 ; Jennings v. Chenango Co. Mut. Ins. Co., 2 Denio, 75 ; Vandervoort v. Columbian Ins. Co., 2 Cai. 155; Cheriot v. Barker, 2 Johns. 346, and elsewhere, as in Higginson v. Dall, 13 Mass. 96; Weston v. Emes, i Taunt. 115; Atherton V. Brown, 14 Mass. 152; Parks v. General Assur. Co., 5 Pick. 34; Flinn v. Tobin, i Mood- & Malk. 367. The courts however are clearly in error in citing the Brown case to that doctrine, for, although such was the drift of the opinion by Strong, J., yet it was not concurred in, and the judgment was distinctly put on another ground ; see p. 391. Any other view would make the court guilty of delivering decisions precisely in conflict with each other, the one following the other in order in the same volume. The Rowley case was unanimous, except that one judge dissented and one did not vote. 4. The same doctrine was laid down in Van Schoick v. Niagara F. Ins. Co., 68 N. Y. 434, three judges, however, dissenting, and the court distinguishing Pindar v. Resolute Ins. Co., 47 N. Y. 1 14 ; Rohrbach v. Germania Ins. Co., 62 id. 47, and Ripley v. .^tna Ins. Co., 30 id., 136, and citing Bodine v. Exchange Ins.. 110 PARO;, EVIDENCE. Co., 51 id. 1 17 ; 10 Am. Rep. 566. This case reviews all the New York authorities, and is decided by a majority of one only, leaving the impression that the subject is very uneasy in that State. 5. The same doctrine was adopted in Combs v. Hannibal Savings and Ins. Co., 43 Mo. 148, which is based on the Plumb and Rowley cases. To the same effect is Commercial Ins. Co. v. Spankneble, 52 111. 53, 4 Am. Rep. 582; and Keith v. Globe Ins. Co., 52 111. 518, 4 Am. Rep. 624; both founded on Atlantic Ins. Co. V. Wright, 22 111. 462 ; Ayres v. Home Ins. Co., 21 Iowa, 185; North American Fire Ins. Co. v. Throop, 22 Mich. 146, 7 Am. Rep. 638 ; in which Judge Cooley gives a learned opinion, although he erroneously cites the Brown case as an authority to the con- trary ; Kelly V. Troy Ins. Co., 3 Wis. 254; May v. Buckeye Mu- tual Ins. Co., 25 id. 291, 306, 3 Am. Rep. yd; Ins. Co. v. Lyons, 38 Tex. 271; An;ierican, etc., Ins. Co. v. McLanathan, 11 Kans. 549 ; Campbell v. Merchants', etc., Ins. Co., 37 N. H. 35. In .iptna, etc., Ins. Co. v. Olmstead, 21 Mich. 246, the same doc- trine was held. Cooley, J., here observed : " The general rule Undoubtedly is, that in the absence of fraud, accident or mistake, a party must be conclusively presumed to understand the force of his contracts, and to be bound by their terms. But it cannot be tolerated that one party shall draft the contract for the other, and receive the consideration, and then repudiate his obligation on the ground that he had induced the other party to sign an untrue representation, which was by the very terms of the contract to render it void. Still less can this be allowed, when the repre- sentation itself is so ambiguously worded as to be well calculated to conceal its real meaning, and to deceive the party signing it." Contrary authority: i. The leading recent case holding a different doctrine from the principal case, is Franklin Fire Ins. Co. V. Martin, 40 N. J. L. 568, where it was decided by the court of errors and appeals, that in an action upon a policy of fire insurance, evidence of what passed between the assured and the agent of the company at the time of effecting the insurance, was not admissible as against the defense of for- feiture of breach of conditions. The application was filled out by the agent, who, knowing that the premises were occupied as a tavern and billiard-room (both extra-hazardous), described them as " occupied as a dwelling and boarding-house." The court held that evidence of this fact could not be received ±0 show that the parties intended to insure the premises as they MODIFICATION, DISCHARGE, ETC. Ill in fact were. The court admitted that if the misrepresentation had been of a fact collateral to the contract, proof of the agent's knowledge of the truth would have been an answer, but insisted that as to a warranty a different rule prevails, and the contract fails if the warranty is not true without regard to the knowledge of the company. The court further conceded that if the pro- posal for insurance was prepared by the agent of the company, and he misdescribed the premises, with full knowledge of their actual ■condition, and there was no fraud or collusion between the agent and the insured, the contract of insurance may be reformed in ■equity, and made to conform to the condition of the premises as they were known to the agent. But it was held that in an action at law on the policy the rights of the parties must be determined by the contract without regard to the knowledge of the insurers or its agents. The court observe : " It is manifest that the theory that such parol evidence, though it may not be competent to •change the written contract, may be received for the purpose of raising an estoppel in pais, is a mere invasion of the rule exclud- ing parol testimony when offered to alter a written contract. A party suing on a contract in an action at law must be conclusively presumed to be aware of what" the contract contains, and the legal • effect of his agreement is that its terms shall be complied with. Extrinsic evidence of the kind under consideration must entirely fail in its object, unless its purpose be to show that the contract expressed in the written policy was not in reality the contract as made ; a defendant cannot be estopped from making the defense that the contract sued on is not his contract, or that his adversary has himself violated it in those particulars which are made con- ditions to his rights under it, on the ground of negotiations and transactions occurring at the time the contract was entered into, unless the plaintiff is permitted to show from such sources that the contract as put in writing does not truly express the intention of the parties. The difficulty lies at the very threshold. An estoppel cannot arise except upon proof of a contract different from that contained in the written policy, and an inflexible rule of evidence forbids the introduction of such proof by parol testi- mony when offered to vary or affect the terms of the written instrument." There was a dissent on the part of three of the twelve judges. 2. In State M. F. Ins. Co. v. Arthur, 30 J'enn. St. 331, the same doctrine was held in 1858. The court said: "Knowledge 112 PAROL EVIDENCE. by the underwriters of a breach of warranty, at the time it was. made, does not relieve the assured from the consequences of the breach, or convert the engagement into a different warranty. It: may relieve against a false or imperfect representation, but not, against a warranty. The purpose in requiring a warranty is to^ dispense with inquiry, and cast entirely upon the assured the obligation that the facts shall be as represented. Compliance with his warranty is a condition precedent to any recovery upon the contract. It is therefore that the materiality of the thing warranted to the risk is of no consequence. The assured, by his. warranty, engages that whatever may be the condition of things, when he makes his application, the facts shall be as warranted- when the policy attaches. The building may be occupied as a. powder magazine to-day, but when the risk commences it must be what he has warranted. Knowledge by the underwriter, or by him and the assured, is no basis for reforming the policy, though it is conceded that equity will reform it in the case of mutual mistake of facts." " It is not true that the rule which prevails in sales of personal property, namely, that the warranty- does not embrace defects known to the purchaser, is also extended' to warranties contained in policies of insurance." 3. To the same effect are Dewees v. Manhattan Ins. Co., 35 N. J. L. 366; Barrett v. Mut. Ins. Co., 7 Cush. 175; Lowell v.. Middlesex Ins. Co., 8 id. 127; Jenkins v. Quincy Mut. Ins. Co., 7 Gray, 370; Jennings v. Chenango Co. Mut. Ins. Co., 2 Denio, 75 ; Sheldon v. Hartford Fire Ins. Co., 22 Conn. 235. Columbia Ins. Co. v. Cooper, 50 Penn. St. 331, and Patteri V. Ins. Co., 40 N. H. 375, sometimes cited on one side and some- times on the other of this question, decide only that the doctrine of the rule is applicable in cases of representation not amounting; to warranty. Rohrbach v. Germania Ins. Co., 62 N. Y. 47; 20 Am. Rep. 451, sometimes cited as authority for the contrary doctrine to that of the rule, cannot justly be so deemed, for in that case the policy contained a provision that the agent should be deemed the agent of the insured as to all representations and warranties, and the court were unanimous, while the same court, two years, later, in the Van Schoick case, were divided four to three. In Pindar v. Resolute Ins. Co., 47 N. Y. 114, the applicant wrote for one kind of policy and received an entirely different one, and it was held that parol evidence could not be received to vary it.. MODIFICATION, DISCHARGE, ETC. 113 The case of Insurance Co. v. Mowry, 96 U. S. 544, is not at all in point,, for there the representation of the agent was not at the tiixie of the writing of the policy, but previous, and was merely to the effect that the insured should have notice when his pre- 'miums should come due before being required to pay them ; and the court held that the previous negotiations were merged in the written contract. These cases are cited and relied on in Frank- lin Fire Ins. Co. v. Martin, supra, and that decision loses much of its authority, in our judgment, from the exposure of the true ■character of those decisions. The doctrine of the Rohrbach case had in effect been previously announced in Chase v. Hamilton Ins. Co., 20 N. Y. 53, where, although the agent knew the facts and filled up the application, yet the application stipulated that the insurer should not be bound by acts done by or statements communicated to an agent, unless contained in the application. The rule is thoroughly sustained by the recent cases given in the foot-note.' ' As to waiver of condition against over- insurance : Elliott V. Lycoming Co. M. Ins. Co. 66 Pa, St. 22; S. C. 5 Am. Rep. 323. As to condition in respect to change or increase of risk. Com. V. Hide & Leather Ins. Co. 112 Mass. 136; S. C. 17 Am. Rep. 72. Oshkosh Gaslight Co. v. Germania F. Ins. Co. 71 Wis. 454; S. C. 5 Am. St. Rep. 233. As to condition in respect to disclosure of incumbrances : N. A. F. Ins. Co. v. Throop, 22 Mich, • 146; S. C. 7 Am. Rep. 638. Wilson V. Minn. F. M. F. Ins. Assn. 36 Minn. 112; S. C. i Am. St. Rep. 659. Copeland v. Dwelling-house Ins. Co. 77 Mich. 554; S. C. 18 Am. St. Rep. 414. McFarland v. Kittanning Ins. Co. 134 Pa. St. 590; S. C. 19 Am. St. Rep. 723. As to waiver of condition for payment of premium : Sims V. State Ins. Co. 47 Mo. 54; S. C. 4 Am. Rep, 311. Bodinev, Ex. F. Ins. Co. 51 N. Y. 117; S. C. 10 Am. Rep, 566, Young V. Hartford Fire Ins, Co. 45 Iowa, 377; S. C. 24 Am, Rep, 784. Dayton Ins. Co, v, Kelly, 24 Ohio St, 345; S. C. 15 Am. Rep, 612, Joliffe V. Madison M. Ins, Co. 39 Wis. m; S. C. 20 Am, Rep, 35, Southern L, Ins, Co, v. Booker, 9 Heisk. 606; S. C. 24 Am. Rep. 344. Howell V, Knickerbocker L, Ins, Co. 44 N. Y. 276; S, C. 4 Am. Rep. 675. Carson v. Jersey City F. Ins. Co. 14 Vroom, 300; S. C. 39 Am. Rep. 584. Wooddy v. Old Dominion Ins. Co. 31 Gratt. 362; S. C. 31 Am. Rep. 732. Piedmont & Arlington L. Ins. Co. v. Young, 58 Ala. 476; S. C. 29 Am. Rep. 770. Dilleber v. Knickerbocker L. Ins, Co, 76 N, Y. 567. Leslie v. Knickerbocker L. Ins. Co. 63 N. Y. 27. Prentice v. Knickerbocker L. Ins. Co. 77 N. Y. 483; S, C. 33 Am, Rep. 651. Cotton States L. Ins, Co, v, Lester, 62 Ga. 247; S, C. 35 Am, Rep. r22. Insurance Co, v. Eggleston, 96 U. S. 572. Willcuts V, N, W, L. Ins. Co. 81 Ind. 300. 114 PAROL EVIDENCE. Custom to accept premiums : In some cases proof has been admitted of a general custom among insurance companies to Williams v. Hartford Ins. Co.. 54 Cal. 442. Meyer v. Knickerbocker L. Ins. Co. 73 N. Y. 516; S. C. 29 Am. Rep. 200. Mayer v. M. L. Ins. Co. 38 Iowa, 304; S, C. 18 Am. Rep. 34. Union Cent. L. Ins. Co. v. Pottker, 33 Ohio St. 459; S. C. 31 Am. Rep. 555. Walsh v.^ yEtna L. Ins. Co. 30 Iowa, 133; S. C. 6 Am. Rep. 664. Appleton V. Phrenix M. L. Ins. Co. 59 N. H. 541 ; S. C. 47 Am. Rep. 220. Lebanon M. Ins. Co. v. Hoover, 113 Pa. St. 591; S. C. 57 Am. Rep. 511. Dayton Ins. Co. v. Kelly, 24 Ohio St. 345; S. C. 15 Am. Rep. 612. Susquehanna M. F. Ins. Co. v. Elkins, 124 Pa. St. 484; S. C. 10 Am. St. Rep. 608. Farnum v. Phoenix Ins. Co. 83 Cal. 246; S. C. 17 Am. St. Rep. 233. As to waiver of condition against sale or change of title, or possession or occu- pancy : Pratt V. N. Y. Cent. Ins. Co. 55 N. Y. 505; S. C. 14 Am. Rep. 304. Whited V, Germania F. Ins. Co. 76 N. Y. 415; S. C. 32 Am. Rep. 330. Shearman v. Niagara F. Ins, Co. 46 N. Y. 526; S. C. 7 Am. Rep. 380. Miner v. Phoenix Co. 27 Wis. 693; S. C. 9 Am. Rep. 479. Maryland F. Ins. Co. v. Gusdorf, 43 Md. 506. As to waiver of condition against other insurance : Couch V. City F. Ins. Co. 38 Conn. i8i ; S. C. 9 Am. Rep. 375. Webster v. Phoenix Ins. Co. 36 Wis. 67; S. C. 17 Am. Rep. 479. Security Ins. Co. v. Fay, 22 Mich. 467 ; S. C. 7 Am. Rep. 670. Allemania F. Ins. Co. v. Hurd, 37 Mich. 11; S. C. 26 Am. Rep. 491. Hayward V. Nat. Ins. Co. 52 Mo. 181; S. C. 14 Am. Rep. 400. Levy V. Peabody Ins. Co. 10 W. Va. 560; S. C. 27 Am. Rep. 598. Pechner v. Phoenix Ins. Co. 65 N. Y. 195- Kitchen v. Hartford F. Ins. Co. 57 Mich. 135; S. C. 58 Am. Rep. 344. Am. Cent. Ins. Co. v. McCrea, 8 Lea, 513; S. C. 41 Am. Rep. 647. Dayton Ins. Co. v. Kelly, 24 Ohio St. 345; S. C. 15 Am. Rep. 612. Carrugi v. Atlantic F. Ins^ Co. 40 Ga. 135; S. C. 2 Am. Rep. 567. Queen Ins. Co. v. Young, 86 Ala. 424; S. C. II Am. St. Rep. 51. Cleaver v. Traders' Ins. Co. 71 Mich. 414; S. C. 15 Am. Rep. 275. Grubbs v. N. C. Home Ins. Co. 108 N. C. 472; S. C. 23 Am. St. Rep. 62. Contra : Havens v. Home Ins. Co. 11 1 Ind. 90; S. C. 60 Am. Rep. 689. As to waiver of condition in respect to notice and proofs of loss or death? Carson v. Jersey City F. Ins. Co. 14 Vroom, 300 ; S. C. 39 Am. Rep. 584- Rokes V. Amazon Ins. Co. 51 Md. 512; S. C. 34 Am. Rep. 323. 111. Mut. F. Ins. Co. V. Archdeacon, 82 111. 236; S. C. 25 Am. Rep. 313. Franklin F. Ins. Co. v. Chicago Ice Co. 36 Md. 102; S. C. II Am. Rep. 469. Grattan v. Met. L. Ins. Co. 80 N. Y. 281; S. C. 36 Am. Rep. 617. Smith V. Niagara F. Ins. Co. 60 Vt. 682; S. C. 6 Am. St. Rep. 144. Cent. City Ins. Co. v. Oates, 86 Ala. 558; S. C. II Am. St. Rep. 67. Phenix Ins. Co. v. Bowdre, 67 Miss. 620; S. C. 19 Am. St. Rep. 326. As to waiver of condition in respect to vacancy : Short v. Home Ins. Co. 90 N. Y. 16; S. C. 43 Am. Rep. 138. Gans V. St. Paul F. & M. Ins. Co. 43 Wis. 108; S. C. 28 Am. Rep. 535. City, etc., Co. v. March, etc., F. Ins. Co. 72 Mich. 654; S. C. 16 Am. St. Rep. 552. MODIFICATION, DISCHARGE, ETC. 115 accept premiums after they are due, to show a waiver of a clause requiring prepayment." As to condition as to mode of occupancy: Am. Cent. Ins. Co. v. McCrea, 8 Lea, 513; S. C. 41 Am. Rep. 647. Carrigan v. Lycoming F. Ins. Co. 53 Vt. 418; S. C. 38 Am. Rep. 687. Viele V. Germania Ins. Co. 26 Iowa, 9 ; S. C. 96 Api. Dec. 83. Kruger v. West. F. & M. Ins. Co. 72 Cal. 91; S. C. I Am. St. Rep. 42. Menlc V. Home Ins. Co^ 76 Cal. 51; S. C. 9 Am. St. Rep. 158. Contra : Franklin F. Ins. Co. v. Martin, II Vroom. 568; S. C.2q Am. Rep.ayi. As to waiver of condition in respect of representation of title, by knowledge of agent : Manhattan F. Ins. Co. Co. v. Weill, 28 Gratt. 389; S. C. 26 Am. Rep. 364. Germania F. Ins. Co. v. Hick, 125 111. 361; S C. 8 Am. St. Rep. 384. As to non-waiver of condition : Northwestern L. Ins. Co. v. Amerman, 119 111. 329; S. C. 59 Am. Rep. 799. As to waiver of condition for limitation : Little V. Phoenix Ins. Co. 123 Mass. 380; S. C. 25 Am. Rep. 96. III. M. F. Ins. Co. V. Archdeacon, 82 111. 236; S. C. 25 Am, Rep. 313. Bonnert v. Penn. Ins. Co. 129 Pa. St. 558; S. C. 15 Am. St. Rep. 739. Contra: Waynesboro M. F. Ins. Co. • V. Conover, 98 Pa. St. 384; S. C. 42 Am. Rep. 618. , As to waiver of condition for arbitration : Nurney v. Fireman's Fund Ins. Co. 63I Mich. 633; S. C. 6 Am. St. Rep. 338. Farnum v. Phosnix Ins. Co. 83 Cal. 246; S. C. 17 Am. St. Rep. 233. Cont. Ins. Co. v. Wilson, 45 Kans. 250; S. C. 23 Am. St. Rep. 720. As to waiver of condition against assign- ment : Stolle V. ^tna F. & M. Ins. Co. 10 W. Va. 546; S. C. 27 Am. Rep. 593. Penn. Ins. Co. v. Bowman, 44 Pa. St. 8g. Imperial F. Ins. Co. v. Dunham, 117 Pa. St. 460; S. C. 2 Am. St. Rep. 686. Phenix Ins. Co. v. Bowdre, 67 Miss. 620; S. C. 19 Am. St. Rep. 327. As to waiver of condition about intem- perance : Pomeroy v. Rocky Mt., etc., Inst. 9 Colo. 295; S. C. 59 Am. Rep. 144. Dibble v. North. Ass. Co. 70 Mich. I ; S. C. 14 Am. St. Rep. 470. As to waiver of condition about disclos- ure of bodily infirmity ; FoUette v. U. S. Mut. Ace. Assn. 107 N. C. 240; S. C. 22 Am. St. Rep. 878. As to waiver of condition in respect to residence : Walsh V. Mtaa. L. Ins. Co. 30 Iowa, 133; S. C. 6 Am. Rep. 664. As to waiver of misrepresentation of char- acter of occupant : Fitzpatrick v. Hartford L. & A. Ins. Co. 56 Conn. 116; S. C. 7 Am. St. Rep. 288. As to waiver of condition in respect -to keeping books and invoices ; Brown v. State Ins. Co. 74 Iowa, 42S; S. C. 7 Am. St. Rep. 495. As to waiver of privilege of sixty days for paying loss : Cal. Ins. Co. v. Gracey, 15 Colo. 70;, S. C. 22 Am. St. Rep. 376. As to waiver of forfeiture for foreclosure proceedings : Titus v. Glens Falls Ins. Co. 81 N. Y. 410. ■ Girard L. Ins. Co. v. M. L. Ins. Co. 86 Pa. St. 236. Baxter v. Insurance Co. 13 Allen, 320, Contra ; Busby v. N. A. etc. Ins. Co. 40 Md. 572. Candee v. Citizens' Ins. Co. 4. Fed. Rep. 143. Mut. Ben. Life Ins. Co. v. Ruse, 8 Ga. 534- 116 PAROL EVIDENCE. CHAPTER XI. Patent Ambiguities. Sec. 49. Patent ambiguities. Parol evidence is admissible in respect to the subject matter, the situation and relations of the parties and all the circumstances, to explain .any ambiguity apparent upon the face of the instrument; but mere evidence of intention, except as derivable from such proof, is incom- petent in respect to such patent ambiguity. Lord Bacon s maxim : A great deal is said in the lawbooks about latent and patent ambiguities, and the rule is enunciated by some writers on evidence, founded on a remark of Lord Bacon, that latent ambiguities may be explained by parol, but that patent ambiguities cannot be so explained. Here and there too is found the remark that an ambiguity may not be created by parol. " Such ambiguities," said Parsons, C. J., in Storer v. Freeman, 6 Mass. 435 ; S. C. 4 Am. Dec. 155, " must be removed by a sound construction of the words of the deed." So parol evidence was held incompetent at law in Newcomer v. Kline, 11 G. & J. 457; S. C. 37 Am. Dec. 74, to supply the word " dollars," accidentally omitted from a bill single. So it was held, obiter, in White v. Hermann, 5 1 111. 243 ; S. C. 90 Am. Dec. 543. A remark to the same effect was unnecessarily made in Panton v. Tefft, 22 111. 366. The same was said in McNair v. Toler, 5 Minn. 435, in respect to an insensible description of land in a receipt, and precisely the same is the effect of Campbell v. Johnson, 44 Mo. 247. In the last two cases the court held that the remedy was by suit for reforma- tion. This old doctrine is rejected by the modern decisions. " It will not do to say that a patent ambiguity cannot be explained by evidence aliunde, though such remarks are frequently found in the books." Cowen & Hill's Notes, 1359. In Herring v. Boston Iron Co., I Gray, 138, is an excellent definition of "latent ambiguity " : " The ambiguity is latent if it results from viewing the instrument in the light of the collateral facts or what may be PATENT AMBIGUITIES. IIT called the necessary extrinsic evidence." And again, in the language of Chief Justice Shaw, in Sargent v. Adams, 3 Gray, 78, " in coming to apply the description to the contract, and after all these means of exposition have been exhausted, there may remain an uncertainty in such application ; this constitutes a latent ambiguity." Cowen's Criticism : The subject was very learnedly considered by Cowen, J., in Fish v. Hubbard's Admrs. 21 Wend. 651. He says : But we are admonished again and again by the counsel for the defendants, that ambiguitas patens is non-explainable, and that every ambiguity is patent which appears upon the face of the instrument. Phil. Ev. 467, Am. ed. of 1823 ; Bacon's Elem. Rule 23. So says Lord Bacon, and he adds that ^ambiguitas patens is never holpen by averment ; and the reason is because the law will not couple and mingle matters of specialty, which is of the higher account, with matter of averment, which is of inferior account in law ; for that were to make all deeds hollow, and subject to averments, and so in effect that to pass without deed which the law appointeth shall not pass but by deed.' It is not necessary to deny this maxim as limited and explained by the examples which the author himself gives. They are only two : One of a gift to J. D. & J. S. et hceredibus, omitting to say the heirs of which. The other a gift in tail, remainder in tail ; ' pro- vided that if he, they or any of them do any,' etc., restraining them from certain acts in order to perpetuate the estate. In the first case you cannot aver whether the gift intended the heirs of J. D. or J. S., nor in the" second that the proviso was intended only of him in remainder. In short, the rule is one of construc- tion, applicable to the words of a deed, will, or any express contract, and it is confined to words which have no reference, by implication or otherwise, to matters out of the writing in question. This is obvious from what he adds immediately after his two examples : ' Of these, infinite cases might be put, for it holdeth generally that all ambiguity of words by matter within the deed, and not out of the deed, shall be holpen hy construction, or in ^ome cases by election, but never by averment, but rather shall make the deed void for uncertainty.' It is impossible, if we take ambiguity in its broad sense ol doubtfulness, untertainty diXid double ««^a«««^ (see Johnson's Diet.), to maintain Lord Bacon's maxim one moment when we compare it with the adjudged cases. Mr. Wigram has stated, and I think, solved, the extent of the 118 PAROL EVIDENCE. maxims. He says it may be asked whether the rule is not viola- ted, when explanatory evidence, or evidence of collateral^ facts and circumstances, is admitted in aid of a description which upon the face of the will is inaccurate or imperfect. With confidence it is answered no. The inaccuracy of the testator's language in such cases is undoubtedly /^^^w^ / but as the meaning of inaccur- ate (uncertain) language may be unambiguous, it is impossible to predicate of a will, in such cases, or in any case, that it is ambigu- ous until the effect of bringing the language into contact with the facts to which it refers has been tried." Then quoting from Wigram, Cowen adds that Bacon's examples are not cases of mis- description of the object of bounty or the subject of disposition, " but cases in which (the persons and things being sufficiently described) the testator's general intention with respect to them is ambiguously expressed." Judge Cowen then proceeds : " It is by such a course of reasoning alone that the rule can be saved. No one can deny that it is very loosely expressed, though a veneration for the great character of Lord Bacon as a logician has led English judges and writers on evidence into a constant repetition of it, without often adverting to its singular generality. It was never acted upon in its widest extent, and as far as the decisions have gone, it is said by a learned judge, that after several efforts, he has found himself unsuccessful in his attempts to reconcile them. Story, J., in Peisch v. Dickson, i Mason, ii." Story's view : In the latter case Story admitted the general rule, but said : " There seems indeed to be an intermediate class of cases partaking of the nature of both patent and latent ambiguities, and that is where the words are all sensible and have a settled meaning, but at the same time consistently admit of two interpretations, according to the subject matter in the contempla- tion of the parties. In such a case I should think that parol evidence might be admitted to show the circumstances," etc., and he allowed evidence to explain the word " freight." It is apparent from the uniform tenor of more modern decisions that Lord Bacon's distinction is practically disregarded, and extrinsic evidence is always resorted to for explanation although the ambiguity is patent. Other authorities : i. In Shore v. Miller, 80 Ga. 93 ; S. C. 12 Am. St. Rep. 239, the court said parol evidence is admissible to explain an ambiguity in a deed, "whether latent or patent." PATENT AMBIGUITIES. 119 2. Palmer v. Albee, 50 Iowa, 429, was an action for specific performance of a promise by way df subscription to " pay twenty acres of land." It was held that the ambiguity could not be aided by parol. The»court laid down these three rules : " First. Where the instrument seems to be clear and certain on its face, and the ambiguity arises from some extrinsic or collateral matter, the ambiguity may be helped by parol evidence. Second. Where the ambiguity consists in the use of equivocal words designating the person or subject matter, parol evidence of collateral or extrinsic matter may be introduced for the purpose of aiding the ■court in arriving at the rrieaning of the language used. Third. Where the ambiguity is sUch that a perusal of the instrument shows plainly that something more must be added before the reader can determine what of several things is meant, the rule is inflexible that parol evidence cannot be submitted to supply the •deficiency. About this last-named class of cases there cannot, under the authorities, be any question. They belong to the umbiguitas patens of Lord Bacon." Beck, C. J., dissented. This means nothing more than that the uncertainty is so hopeless that nothing short of proof of intention will help it out, and this is inadmissible. It comes within Boardman v. Lessees of Reed, 6 Peters, 328, where it is said : " If the land granted be so inaccurately described as to render its identity wholly uncertain, it is admitted that the grant is void." The contention of the chief justice was that there was no ambiguity ; the contract was to convey twenty acres of land, and equity would compel him to convey some twenty acres, just as if he had contracted to sell •' twenty head of cattle." This case is the most serious recent attempt to support Bacon's maxim, and it does not seem effectually to do it. 3. Starkie says (Ev. 653): "By patent ambiguity must be understood an ambiguity inherent in the words, and incapable of being dispelled either by any legal rules of construction applic- able to the instrument itself, or by evidence showing tliat terms in themselves, unmeaning or unintelligible, are incapable of receiving a known conventional meaning.'' 4. Jones says (Const. Cont. §51): "It arises only when no intention is derivable from the language, viewed with all the light which the law permits." 5. In Colpoys V. Colpoys (Jacob, 451), it is said : '• When the person or thing is designated on the face of the instrument by 120 PAROL EVIDENCE. terms imperfect and equivocal, admitting either of no meaning at all by themselves, or of 'a variety of different meanings, referring tacitly or expressly for the ascertainment and comple- tion of the meaning to extrinsic circumstances, it has never been considered an objection to the reception of the evidence of those circumstances, that the ambiguity was patent, manifested on the face of the instrument." 6. Broom says (Com. Law, 504) : " It would nevertheless be erroneous to suppose that extrinsic evidence is, under no circum- stances, admissible to clear up a prima facie patent ambiguity in a written contract, for proof of facts may be given with a view to showing that the apparent uncertainty does not in truth exist." 7. Greenleaf says (i Ev. 13th ed. §298): "No judge is at liberty to pronounce an instrument ambiguous or uncertain, ui^til he has brought to his aid, in its interpretation, all the light afforded by the collateral facts and circumstances, which, as we have shown, may be proved by parol.' 8.' Stephen says : " If the words of a document are so defective or ambiguous as to be unmeaning, no evidence can be given to show what the author of the document intended to say." This is adopted by Wharton (2 Ev. 3d ed. §§ 956, 957). 9. Taylor says (2 Ev. § 12 13) that Bacon's maxim " has been cited, more out of respect for that great man, than in the expecta- tion that it will afford much practical information." And at § 1226 he says that if the language is insensible with reference to extrinsic circumstances, proof of collateral facts may be given to eff'ectuate the instrument, if possible. 10. The latest writer on Wills (Schouler Wills, § 581) says of Bacon's rule : " The argument moreover derived from mingling proof of the higher and lower, or equal quality, is rather fanci- ful and misleading for employment in our age, antedating, as it does, the legislation of the last two centuries, which inspires our modern policy of written, signed, and attested wills. Lord Bacon's illustrations were good, but practice carried the force of his rule beyond his own examples ; and his distinction of patent and latent, though convenient in some respects, can hardly serve as a criterion." 11. In Ganson v. Madigan, 15 Wis. 153, the court said: " The word ' team,' as used in the contract, is of doubtful significa- tion. It may mean horses, mules, or oxen, and two, four, six, or even more of either kind of beasts. We look upon the contract PATENT AMBIGUITIES. 121 and cannot say what it is. And yet we know vqry well that the parties had some definite purpose in using the word. The trouble is not that the word is insensible and has no settled meaning, but that it at the same time admits of several interpretations, accord- ing to the subject matter in contemplation at the time. It is an uncertainty, arising from the uncertain and equivocal meaning of the word, when an interpretation is attempted without the aid of surrounding circumstances. It appears on the face of the instru- ment, and is in reality a patent ambiguity. The question is, can extrinsic evidence be received to explain it? We think it can. There is undoubtedly some confusion ih the authorities upon this subject, especially if we look to the earlier cases; but the later, decisions seem to be more uniform." 12. In a recent case, Giddings v. Lea, — Tex. — , 19 S. W. Rep. 682, the question was of the sufficiency of a description of land in a deed, and the court observed : " The ruling of the court in this respect was evidently based on the face of the deed, and the correct rule in reference to the duty of a court, when called upon to pass upon such a question, is that stated in Kingston v. Pickins, 46 Tex. lOi, as follows: 'The construction of a deed, being matter of law, is for the court. If therefore the land intended to be con- veyed by it be so inaccurately described that it appears, on an inspection of the deed, the identity of the land is altogether uncertain, and cannot be determined, the court should pronounce it void ; but when the uncertainty does not appear upon the face of the deed, but arises from extraneous facts, as in other cases of latent ambiguity, parol evidence is admissible to explain or remove it. In such case the deed should not be excluded from the jury, but should go to them along with parol evidence, to explain or remove ambiguity; and the identity of the land is then a mixed question of law and fact, to be determined by the jury under the instructions of the court.' This rule is as applicable to deeds made to consummate sales made by sheriffs under execu- tions as .to deeds made by private persons. Wilson v. Smith,, 50 Tex. 369. Looking to the description of the land contained in the sheriff's deed, we ascertain that the quantity of land sold was one-third of a league, and that this was known as ' Survey No. 280,' which would be very indefinite ; for probably a survey for some quantity of land having that number might be found in most of the surveyors' districts in the State. But the locality as well as the area of the survey is given. The survey for that 122 PAROL EVIDENCE. quantity of land, and bearing that number, is declared to be ' on David's creek,' which is identified as a creek of that name, which is a tributaTy of the Colorado River, and enters that stream about twelve miles below the mouth of the Concho. If this was the •only description of the land given in the deed, no court could say that the land might not be identified by it,-and found by a person familiar with the locality thus generally described ; but it is sug- gested that the sheriff's deed locates survey No. 280 about one mile from the mouth of the Colorado River, and declares that it was patented on October 15, i85i,and that these are inconsistent with the other matters referred to for description. To this it must be replied that the inconsistency does not appear in the face -of the description, but only becomes apparent when we look to facts outside the description given in the deed ; and this but presents the case of a latent ambiguity, which may be removed by extrinsic evidence ; and that such evidence may consist in part of proof of facts of which the courts of this State would take judicial notice is unimportant. The land in controversy is situated in Coleman county, and this court may take judicial notice of the fact that the territory now embraced in that county was,, at one time, a part of Travis county ; as it may of the further facts that the Colorado River is the southern boundary of Coleman county, and that the Concho River is a tributary of the Colorado, empty- ing into that stream far above the city in which this court is now sitting, while the mouth of the Colorado is in Matagorda county, which is one of the counties of the State bordering on the Gulf of Mexico. From this it would be known that land on a tributary of the Colorado River, entering into that stream about twelve miles below the mouth of the Concho, could nqt be. situated .about one mile from the mouth of the Colorado River ; and so much of the description should be 'disregarded, in view of the ■combination of other descriptive facts contained in the deed, which show clearly that the call for the land at a place about one mile from the mouth of the Colorado River was made by mistake, when the call for the land should have been at a place on David's Creek, about one mile from the mouth of that stream. The parol testimony offered would have clearly identified the land in contro- versy with that described in the sheriff's deed, and in the patent offered in evidence, and should have been admitted with the ■deed. The fact, which the deed, states that the patent bore date -October 15, 1851, was so stated by mistake, is evident from the PATENT AMBIGUITIES. 123 -fact that the deed bears date September 2, 185 1, while the true date of the patent was October 15, 1,850." Conclusion : So in the last solution, Lord Bacon's famous and much-vexed maxim seems to amount to no more than this : An incurable ambiguity is fatal. Such ambiguity is very rare, but a recent case furnishes an example. In Schattler v. Cassinelli, Supreme Court of Arkansas, 19 S. W. Rep. 746, where land, which it was agreed was in the form of a trapezoid, was described in a tax deed as follows: " E. part N. ^ S.K.}4 sec. 27, town 2, range .12 W., containing 7.54 acres," and there was nothing, such as a recital of ownership, to assist in its identification, it was held that the description is insufficient. The court said : " It is clear that any tract of the requisite; area, taken out of the east half of the 20-acre tract, would in a general sense come within the description, and it is impossible to determine just what was intended, unless there is some rule of legal construction that gives to the description a meaning different from its popular acceptation. The appellant contends that such is the case, and that the law intends from the description a tract of the stated area, in the form of a parallelo- gram, described upon the east line of the larger tract as a base, with the north and south. lines as laterals. Such is the rule often applied by courts in construing descriptions as between parties to them, where there is a clear intention shown to affect some part of a definite tract, and the parties furnish no other means to iden- tify the. part. But this rule is not unbending even in such cases, and yields to a proper showing that the parties intended other- wise ; and proof that the party acting upon the land owned but one tract coming within the description, and it not in a, parallelo- gram, has been permitted to control. Therefore if the rule apply at all in cases where the description is not made by the owner, and is found in proceedings that prejudicially affect him, it could not govern in this case, because the circjumstances and the claim made by the appellant show that the intention was to sell a tract not in a parallelogram. When the circustances rebut such inten- tion and supply no other, the description is left uncertain and meaningless, and does not inform the owner that he is liable to lose his land, or the purchaser what he is buying. The case of Stewart v. Aten's Lessee, 5 Ohio St. 257, presents a description strikingly similar to the one under consideration, and it was adjudged void for uncertainty, for the reason stated by us. But if there was nothing in the circumstances to rebut the presump- 124 PAROL EVIDENCE. tion of an intention to sell a parallelogram, it may be seriously doubted whether the description, standing alone, would come within the rule invoked, and be held sufficiently definite ; for in cases where such descriptions have been aided by the rule, it appeared, either by direct recital in the description or from the circumstances, who owned the land intended, and the ownership indicated was held sufficient to perfect the identification. Judd V. Anderson, 51 Iowa, 346, may be cited as an example. In this case we find nothing in the description itself or in the circum- stances to indicate who owned the land sold for taxes ; and as ownership was not disclosed as a means of identification it may be questioned whether the description before us could in any case be adjudged sufficient." ' ' Prof. James B. Thayer, of Harvard help ; it confuses. It is inextricably con- Law School, in his recent " Select Cases nected with a hopeless mass of mere of Evidence," remarks : " Those do jargon in our later books ; and it cannot wisely, such as Wigram and Stephen and be understood by the mere reading of it, Nichols (in his excellent article in the —you must turn on the light of a know- Juridical Society Papers, ii., 331), who, ledge of the legal conceptions which were in dealing with the parol-evidence rule, peculiar to the time, and of their fanciful reject the use of Lord Bacon's maxim and and pedantic style of expression.'' commentary upon ambiguity. It does not INCOMPLETE AGREEMENTS. 125 CHAPTER XII. Incomplete Agreements. Sec. 50. Omissions and collateral agreements. 51. Character of the additional matter. Sec. 50. Omissions and collateral agreements. Where the instrument does not express the entire agreement, and does not appear to express the entire agreement, or there is a collateral agreement not embraced therein, parol evidence is competent to show the omitted part, whether contemporaneous or antecedent, if it does not conflict with the instrument* Incompleteness need not be manifest : Mr. Freeman says, in a note to Green v. Batson, 5 Am. St. 194 (S. C. 71 Wis. 54): "No ■citation of authority is necessary to substantiate the rule that where, in the absence of fraud, accident or mistake, the parties J West V. Kelly, 19 Ala. 353; S. C. 54 Am. Dec. 192. Hahn v. -Doolittle, 18 Wis. 196; S. C. 86 Am. Dec. 757. Cobb V Wallace, 5 Coldw. 539; S. C. 98 Am. Dec. 435. Hersom v. Henderson, 21 N. H. 224; S. C. 53 Am. Dec. 185. ^Blossom V. Griffin, 13 N. Y. 569; S. C. ,67 Am. Dec. 75. Chapin V. Dobson, 78 N. Y. 74; S. C. 34 Am. Rep. 512. ■Cassidy v. Begoden, 38 N; Y. Super. 180. Harvey v, Million, 67 Ind. 90. Doty V. Martin, 32 Mich. 462. Hubbard v. Marshall, 50 Wis. 322. Knight V. Knotts, 8 Rich. L. 35. ■Coates V. Sangston, 5 Md. 121. Fiske V. McGregory, 34 N. H. 414. IfJissen v. Genesee Gold Min. Co. 104 N, C. 309. Peterson v. Chic, etc., R. Co. 80 Iowa, 92. Shaw V. Mitchell, 2 Mete. 65. Singer Manuf. Co. v. Forsyth, 108 Ind. 334. Kalamazoo Works v. Macalister, 40 Mich. 84. Bryan v. Hunt, 4 Sneed. 543; S. C. 70 Am. Dec. 262. Beyerstedt v. Winona Mill Co. — Minn. — ; 51 N. W. Rep. 619. Chester v. Bank of Kingston, 16 N. Y. 336. Juilliard v. Chaffee, 92 N. Y. 529. Barker v. Bradley, 42 N. Y. 316; S. C. I Am. Rep. 521. Katz V. Bedford, 77 Cal. 319. Johnston v. Patterson, 86 Ga. 725. Thomas v. Hammond, 47 Tex. 42! Bradstreet v. JRich, 72 Me. 233. Jeffery v. Walton, i Stark. 213. Allen V, Pink, 4 M. & W. 140. 126 PAKOL EVIDENCE. have deliberately put their contract into a writing, which is evi- dently complete in itself, and couched in such language as imports a legal obligation, it is conclusively presumed that they have intro- duced into the written instrument all material terms and circum- stances relating thereto, and consequently all prior conversations and negotiations are deemed to be merged therein, and parol evidence of conversations held between the parties, or of declar- ations made by either of them, whether before or after the com- pletion of the contract will be rejected. But where the contract as expressed in the writing is manifestly incomplete, parol evi- dence is admissible to show a contemporaneous agreement that the property should be of a particular quality, kind or quantity; or if such contract consists of an informal bill or receipt, not intended to embrace the entire contract, parol evidence of a warranty is admissible." This seems an accurate statement, except as to the limitation of the admissibility of parol evidence to cases where the writing is " manifestly incomplete." There are some remarks in the adjudications which seem to bear out this limitation. Thus in Hei v. Heller, 53 Wis. 415, it is said that " if it is not apparent from the writing itself that something is left out to be supplied by extrinsic evidence, parol evidence to vary or add to its terms is inadmissible." So in Crane v. Associ- ation, 5 Dutch. 305, it is said, if the papers "on their face are fragmentary, and do not purport to be an entire and complete contract, the parol contract is not held to be merged in them," etc. So in Naumberg v. Young, 44 N. J. L. 341, the court said that to warrant the admission of parol evidence, " the promise must not only be collateral, but must, as in Lindley v. Lacy, relate to a subject distinct from that to which the written contract applies." But it seems clear from the cases that to furnish a basis for the admission of parol evidence the incompleteness need not be apparent on the face of the instrument, and the evidence is admissible, unless the instrument on its face conclusively appears to be complete. If the instrument, construed in view of the cir- cumstances in which, and the purposes for which, it was executed — which evidence is always admissible to put the court in the position of the parties — " shows that it was meani; to contain the whole bargain between the parties, no extrinsic evidence can be admitted to introduce a term which does not appear there," as Earle, C. J., says in Lindley v. Lacey, 17 C. B. (N. S.) 578. But if in this view it does not appear to have been meant to show INCOMPLETE AGREEMENTS. " 127 the whole bargain, then evidence of the collateral or additional agreement is admissible so long as it is not inconsistent with what is written. On this reasoning alone can the decisions be harmon- ized, and on this reasoning very little conflict or difficulty will appear. For example : on a lease of " a hotel and the furniture therein," oral evidence of an agreement to put in more furnititre would not be admissible, for it would be inconsistent with the apparent intention to let the hotel with its present furniture alone; but on a lease of a hotel, containing furniture, but without men- tion of furniture, parol evidence of an agreement to lease the furniture therein would be admissible, upon parol evidence of an. agreement to include the furniture, or of the purpose to let and hire the premises for a hotel, and showing no intention to- exclude or reserve the furniture. Greenleaf has expressed the rule in this particular more simply and correctly than some other text-writers and many judges, when he says (i Ev. § 284a): " Nor does the rule apply in cases where the original con- tract was verbal and entire, and a part only of it was reduced to writing." (The italics are his.) So Jones says such evidence is competent "where the writing is manifestly informal and incomplete. Where the oral agreement is a collateral contract consistent with the writing." Jones Const. Cont. 1841, And the correct rule is exactly expressed in Thomas v. Scutt, 127 N. Y. 138: "I. The writing must not appear upon inspection to be a complete contract, embracing all the particulars necessary to make a perfect agreement and designed to express the whole arrange- ment between the parties, for in such a case it is conclusively pre- sumed to embrace the entire contract. 2. The parol evidence must be consistent with and not contradictory of the written instrument." In ,fact, the whole question is solvable under the latter sentence; for if the writing clearly appears to be complete, the parol addition must necessarily be contradictory of it, and consequently is not admissible. Therefore any parol additiory not contradictory is admissible. Stephen, in his digest of the Law of Evidence, after stating the rule that oral evidence is inadmissible to contradict, alter, add to or viry the terms of a written contract, grant or other dis- position of property, adds five exceptions, the second being as follows: " 2. The existence of any separate oral agreement as to any matter on which a document is silent, and which is not incon- sistent with its terms, if from the circumstances of the case the 128 PAROL EVIDENCE. court infers that the parties did not intend the document to be a complete and final statement of the whole of the transaction between them." Art. go. Taylor, in his treatise on the Law of Evidence, says: "The rule does not prevent parties to a written contract from proving, that either contemporaneously or as a preliminary measure, they had entered into a distinct oral agreement on some collateral matter. Still less, as will presently be shown, does the rule exclude evidence of an oral agreement, which constitutes a con- dition on which the performance of the written agreement is to depend." § 1038. " It is almost superfluous to observe, that the rule is not infringed by proof of any collateral parol agreement, which does not interfere with the terms of the written contract, though it may relate to the same subject-matter." § 1049. Earle, C. J., in Lindley v. Lacey, 17 C. B (N. S.) 578, states the rule thus : " If the instrument shows that it was meant to con- tain the whole bargain between the parties, no extrinsic evidence can be admitted to introduce a term which does not appear there. But if it be clear that the written instrument does not contain the whole, and the jury find that there was a distinct collateral verbal agreement between the parties, not inconsistent with the written contract, the law does not prohibit such distinct collateral agreement from being enforced. In some of the cases, as in Harris v. Rickett, 4 Hurlst. & N. (N. S.) i, there was a prior verbal agree- ment. In Davis v. Jones, 17 C. B. 625, the oral and the written agreement were contemporaneous. So in Wallis v. Littell, 1 1 C. B. (N. S.) 369, there was a contemporaneous oral agreement. * * * It is clear therefore that if there be a distinct collateral oral agreement between the parties, it is immaterial whether it precedes or is contemporaneous with the written agreement." In Erskine v. Adearle, L. R. 8 Ch. App. 756 ; S. C. 6 Moak Eng. 594, Mellish, L. J., said: " No doubt, as a rule of law, if parties ■enter into negotiations affecting the terms of a bargain, and after- ■ward reduce it to writing, verbal evidence will not be admitted to introduce additional terms into the agreement ; but nevertheless what is called a collateral agreement, where the parties have •entered into an agreement for a lease or for any other deed under seal, may be made in consideration of one of the parties execu- ting that deed, unless, of course, the stipulation contradicts the terms of the deed itself." In Shughart v: Moore, 78 Penn. St. 469, the tenant sued the INCOMPLETE AGREEMENTS. 129 landlord, averring, in substance, that the landlord agreed with him if he would tend a certain farm on the shares, he, the land- lord, would build a barn for his use by harvest, and that he failed to do so, to his damage. Sharswood, J., said : "The cases of Weaver v. Wood, g Barr, 220, and Powelton Coal Co. v. McShain, 25 P. F. Smith, 238, are full to the point that the offer of evi- dence complained of in the first assignment of error ought to have been received. These cases settle beyond all question that where a promise is made by one party in consideration of the execution of a written instrument by the other, it may be shown by parol evidence." In Taylor on the American Law of Landlord and Tenant it is said : " But distinct and separable provisions, whether contem- poraneous with or prior to the execution of a deed or written lease, will not be merged therein if clearly collateral." § 44. Redfield, C. J., says in Winn v. Chamberlin, 32 Vt. 318: "And a written memorandum of a transaction will never exclude proof of stipulations not contained in the writing, where both parties agree that the writing shall not contain the whole contract, unless the additional matters are inconsistent with the writing." Illustrations of rule : i. This principle is illustrated in two early leading cases. In the one there was a memorandum of the hiring of a horse as follows : " Six weeks at two guineas. William Walton, Junior." Lord Ellenborough admitted oral evidence of the hirer's assuming all damages which might result from his shying — " suppletory matter as part of the agreement." ' 2. In the other the memorandum was as follows : " Bought of G. P. a horse for the sum of £"] 2s. 6d. G. P." Lord Abinger admitted evidence of an oral warranty, characterizing the memo- randum as " an informal receipt for the money, not as containing the terms of the contract itself."" 3. Thus parol evidence was received in Hahn v. Doolittle, 18 Wis. 196; S. C. 86 Am. Dec. 757, to add a warranty to a written assignment of a note and mortgage. The court said the general rule " is not applicable to instruments which from their very nature do not attempt to state the entire agreement in respect to the subject-matter, but are adopted merely to transfer title, in execu- tion of an agreement they do not profess to show." So in Cobb V. Wallace, 5 Coldw. 539; S. C. 98 Am. Dec. 435, to add to a ' Jeffery v. Walton, i Stark. 213. = Allen v. Pink, 4.M. & W. 140. 130 PAROL EVIDENCE. receipt for a barge of coal with an agreement to pay three dollars a day until returned, an agreement that the barge was to be used only to carry the coal to market and to be returned as soon as discharged. So in Hersom v. Henderson, 21 N. H. 224; S. C. 53 Am. Dec. 185, and in Atv/ater v. Clancy, 107 Mass. 369, and Adams v. Gray, 8 Conn. 1 1 ; S. C. 20 Am. Dec. 82, to add a warranty to a receipted bill of sale of chattels. So in Blossom v. Griffin, 13 N. Y. 569; S. C. 6j Am. Dec. 75, to add to a receipt for goods to be forwarded, an antecedent agreement to transport plaintiff's goods generally as carriers. 4. So in Chapin v. Dobson, 78 N. Y. 74: S. C. 34 Am. Rep. 512, to add to a contract of sale of machinery a guaranty that it should work satisfactorily.* In this case the court said, at page 514: "It does not apply therefore where the original contract was verbal and entire and part only reduced to writing. Potter V. Hopkins, 25 Wend. 417; Batterman v. Pierce, 3 Hill, 171; Grierson v. Mason, 60 N. Y. 394. Nor has it any application to collateral undertakings. Lindley v. Lacey, 17 C. B. (N. S.) 578, and cases cited below. And these facts are always open to inquiry, and may be proved by parol. Filkins v. Whyland, 24 N. Y. 344; Stephen's Dig. of Law of Ev., ch. 12, art. 90. " In Jeffery v. Walton, i Stark. 213, the contract for the hire of a horse was in writing, and it was further agreed by parol that accidents occasioned by his shying should be at the risk of the hirer. The horse shied and in consequence was injured. In a suit for damages it was held that parol evidence of that portiop of the agreement which was not in writing was admissible. In Batterman v. Pierce, 3 Hill, 171, the action was upon a note given for wood on plaintiff's land. The defense was a verbal agreement made at the same time by plaintiff, that if anything happened to the wood through his means, or by setting fire to his fallow, he would be accountable and would guarantee the purchaser against ' The 'writing was as follows: " Phila- Man's time and expenses from Philadel- delphia, July 9, 1868. We agree to fur- phia to be charged extra for applying the nish John Dobson with the following machines. Terms, cash on delivery, 5 machinery, on terms stated: Sixteen 48- per cent, commission to be allowed on inch and seven 60-inch First Breaker each machine. Five 60-inch and four 48- Feeders, at three hundred dollars each, inch to be delivered as soon as possible, delivered at depot at Pawtucket, R. I., to the balance in thirty days thereafter, be sent by steamer from Boston to Phila- Harwobd & Quincy, agents for Chapin & delphia, and allowance of three dollars to Downes. I agree to the above. John, be made on each machine for freight. Dobson." INCOMPLETE AGREEMENTS. 131 any damages in consequence of firing his fallow — the fallow was burned and the wood also — the defense prevailed, the court hold- ing that the same result would follow, whether the contract of both parties had been written out, or whether all rested in parol without writing, saying ' nor can it make any substantial difference that the undertaking of one party has been reduced to writing the engagement of the other party remains in parol ' — and to the objection that the defense contradicted the note said there was ' nothing in it.' ' The defendants do not deny that they made such a contract as that on which the plaintifif seeks to recover, but they allege that the plaintifif at the same time entered into- an engagement on his part which has subsequently been broken ; ' and the same may be said of the parties in the case in hand. The later cases of Morgan v. Griffith, L. R., 6 Ex. 70, and Erskine V. Adeane, L. R., 8 Ch. App. 756, explain the exception con- tended for and the principle upon which the ruling of the referee stands. They were considered by this court in Johnson v. Oppen- heim, 55 N. Y. 280-293, and there said to be within the rule which allows a collateral agreement made prior to or contemporaneous with a written agreement but not inconsistent with or affecting ts terms, to be given in evidence. Other examples to that effect are Unger v. Jacobs, 7 Hun, 220; Bookstaver v. Glenny, 3 T. & C. 248, affirmed in this court. The case before us may be added to the same class, without disturbing the decision of this court in Wilson v. Deen, 74 N. Y. 531, on which the appellants rely. There the plaintiff sought to cancel a lease upon the ground that the defendant failed to perform an oral agreement concerning a matter embraced in and covered by its terms. .It was held that his case was directly within the general rule above stated, and the court advert to the fact that it was not claimed to be within the principle which upholds an oral or parol agreement when col- lateral to a written instrument contemporaneously executed, and say if it had been so claimed it would have been unavailing, as in such a case the only remedy would be an action for damages for the breach of the parol contract. These distinctions are clearly pointed out in that case and are illustrated in Angell v. Duke, L.. R., loQ. B. I74,and Mann v. Nunn,43 L. J.(N. S.), C. P. 241. In- Angell V. Duke the plaintiff was held entitled to recover damages; for the breach by the lessee of an agreement similar to that im Wilson V. Deen, supra, the court holding it to be collateral to the demise and the case analagous to Morgan v. Griffith, supra. So 132 PAROL EVIDENCE. in Mann v. Nunn, where a lessor promised that if the proposed lessee would take the lease of a house, he would put the house in a state fit for habitation, the promise was held to be collateral to the written lease, and provable by parol evidence for the purpose of recovering damages for the breach of it." The court continuing said: " The guaranty as made does not contravene the written contract, and is not inconsistent with it. If the fitness of the machine is implied, the guaranty is in har- mony with it and adds nothing ; if it is not implied the paper contains no declaration that the machines shall be taken with all faults and insufficiencies, or at the defendant's risk. The parol evidence therefore contradicts no term of the writing nor varies it. ''The written contract and the guaranty do not relate to the same subject-matter. The contract is limited to a particular ma- chine as such. The guaranty is limited to the capacity of the machine. It is one thing to agree to sell or furnish machines of a specific kind, as of such a patent, or of a particular designation, and another thing to undertake that they shall operate in a par- ticular manner or with a certain effect, or as in this case, that they shall do the buyer's work satisfactorily. The first would be performed by the delivery of machines answering the description or the specifications of the patent ; and whether they did or not conform thereto would be the only inquiry. As to the other, it in no respect touches the first, nor does it operate as a defeasance, but leaves it valid and to be performed, and the consequences of a breach of the guaranty are a recoupment or abatement of dam- ages in favor of the defendant, and this is so, whether the con- tracts are in writing or not ; for the guaranty is valid although not in writing, and the same rule must apply, for in either case the relation of the guaranty to the contract would be the same. Ip Heyworth v. Hutchinson, L. R., 2 Q. B. 447, the defendants bought of the plaintiffs a specific quantity of wool, then at sea but expected to arrive ; ' the wool to be guaranteed about similar to certain samples ' referred to. The defendants refused to receive the wool, alleging that it was not similar to the samples, and being sued for non-acceptance set up that fact as a defense. The court held it invalid, that the contract was for specific goods, and therefore the clause of guaranty was only collateral to the contract, and so the buyer could not reject the wool on the ground that it was not conformable to the sample, but his rem- INCOMPLETE AGREliMENTS. 133 edy would be either by a cross action on the guarantee or by giving the infirmity in evidence in reduction of damages. This case is in point. It seems plain, both upon principle and author- ity, that the plaintiffs' undertaking was collateral to the contract by which they undertook to furnish the machines, and that the referee committed no error in receiving the evidence objected to." Criticisms on Chapin v. Dobson : The contract in this case is pronounced " informal," in Naumberg v. Young, 44 N. J. L. 331, and by Mr. Jones (Const. Trade Cont. sees. 142, 143, 153). It is true that the contract was not drawn in legal and professional phraseology ; it is apparent that it was not drawn by a lawyer ; it was evidently a memorandum drawn by merchants. In this sense it unquestionably was " informal." But it was not inexplicit nor ambiguous. On the contrary, so far as it went, it was very explicit. It can hardly be maintainable that oral evidence is competent to add to a contract merely because it is not drawn by a professional person nor in legal language. This is not the infor- mality intended by the law. The law here refers to imperfect contracts. The contract in Chapin v. Dobson, notwithstanding its informality, was a perfect contract so far as it professed to go, and' no charity may reasonably be claimed for it on the score of informality. It must be taken as a ruling that although a con- tract may be complete on its face, yet an addition may be made to it if not inconsistent with it ; and in this view the decision seems well maintainable.' 5. A very recent instance of the addition of an oral warranty is found in a decision of the Massachusetts Supreme Judicial Court,"" although the decision is based as well upon the theory of subsequent oral modification. The court said, by Morton, J.: " In the present case it appears that the contract relied on was a ' In the sixth American edition of Ben- not apply to an informal ' bill of parcels,' 'amin on Sales, Mr. Edmund H. Bennett, as it is called." The editor cites Eighmie the American editor, says in a note : "If v. Taylor, but takes no note of Chapin v. the article is sold by a formal written con- Dobson. Mr. Corbin, the editor of the tract, or a regular bill of sale, which is fourth American edition, expresses the silent on the subject of warranty, no oral opinion that it is difficult to reconcile the warranty made at the same time, or even decision with others ( § 203, note 2 ; § 209 previously, can be shown, since the writ- note 6). The decisions in the Chapin and ing is conclusively supposed to embody Eighmie cases were pronounced by the the whole contract. For the same reason same judges, with the exception of the no additional oral warranty can be en- chief judge, and both were unanimous, grafted on or added to one that is written. ''Thomas v. Barnes, — Mass. — , 31 * * * But this rule * * * does N. E. Rep. 683. 134 PAROL EVIDENCE. bilateral, executory one. Duplicate papers were prepared, appar- ently with the expectation that they were to be signed by both parties, and one retained by each. Only one was signed, and that was signed by Barnes alone. It was given to Thomas by Barnes, and remained in his possession, but he did not sign it. Barnes offered to show that it was agreed by the parties that this paper " was only a partial memorandum, and that* it did not contain all the provisions of the contract, and tflat as part of the contract Thomas orally warranted the refrigerator. The paper signed by Barnes was consistent on its face with the view that it was intended by the parties merely as specifications, and not as con- taining the whole contract. The conduct of Thomas in not sign- ing it was also consistent with this view. If it was delivered by Barnes to Thomas, and assented to by the latter as containing the whole contract, their oral evidence as to previous or contempo- raneous conversations would not be admissible to affect it. But whether it was so delivered to Thomas, and assented to by him, was a question of fact for the jury under suitable instructions. Sears v. Railway Co. 152 Mass. 151 ; Wilson v. Powers, 131 Mass. 539; Bartlett v. Stanchfield, 148 Mass. 394; Durkin v. Cobleigh (Mass.), 30 N. E. Rep. 474. We think therefore that the evidence should have been admitted. During the progress of the work a controversy arose as to the packing of the refrigerator. Barnes offered to show that Thomas then iVarranted the refrigerator, and that Barnes accepted the warranty. There was nothing in the specifications or in the alleged contract as to the packing or relating to a warranty. The court excluded the testimony ; but we think it should have been admitted. It is well settled that an executory, bilateral written contract may be varied by a subsequent oral agreement between the parties. Bartlett v. Stanchfield supra ; Stearns v. Hall, 9 Cush. 31 ; Courtenay v. Fuller, 65 Me. 156. The contract, when modified by the subsequent oral agreement, is substituted for the contract as originally made, and the original consideration attaches to and supports the modified contract. Munroe v. Perkins, 9 Pick. 298; Holmes v. Doane, 9 Cush, 135; Byington v. Simpson, 134 Mass. 145; Malone v. Dougherty, 79 Pa. St. 46-53; Courtenay v. Fuller, supra; Flanders v. Fay, 40 "Vt. 316; Bishop v. Busse, 69 111. 403; Lattimore v. Harsen, I4 Johns. 330; Goss v. Nugent, 5 Barn. & Adol. 58, 65. If there- fore the paper writing had contained the whole contract, the INCOMPLETE AGREEMENTS. 135 evidence was admissible for the purpose of showing that the parties subsequently modified it." 6. In Boorman v. Jenkins, 12 Wend. 566; S. C. 27 Am. Dec. 158, evidence was admitted to show that it was the usage of cot- ton brokers not to enter, in bills of sale, the fact that sales were made by sample. In an action on an insurance policy parol proof of an agreement that the mortgagee, the insured, should keep the premiums insured and the mortgagor should pay the premiums, was held competent in Kernochan v. New York Bowery F. Ins. Co. 17 N. Y. 428. Parol evidence may supply the date of an undated chattel mortgage, and identify the property described only as "now in store occupied," etc. Burditt v. Hunt, 25 Me. 419 , S. C. 43 Am. Dec. 289. In a suit by a trustee in a deed of trust, to recover live stock referred to in the deed only by number, parol evidence is competent to identify it. Barker v. Wheelip, 5 Humph. 329; S. C. 42 Am. Dec. 433. A contract of sale was expressed to be " oil the usual terms." It was held that parol evidence was proper to define the terms. Lawrence v. Gallagher, N, Y. In Domestic Sewing Machine Co. v. Anderson, — Minn. — , to a written agreement for hire and return of sewing machine on demand, a contemporaneous oral agreement for its sale was added by parol. In Richard v. Wellington, 66 N. Y. 308, evidence as to what account moneys credited in an account ren- dered were paid upon was held proper. In Bonney v. Morrill, 57 Me. 368, a stipulation was given in ejectment allowing a recovery for a specified portion of the land, but silent as to mesne profits. It was held that parol evidence was competent to show it covered the claim for mesne profits. On a written sale of a slave, warrant- ing title, parol evidence is admissible to show a warranty of health and soundness. This " does not contradict or vary the bill of sale.' ' 7. Parol evidence is admissible in an action for brokers' com- missions, to show that a receipt and an agreement for deposit in ' escrow of a deed, at the time of an alleged sale, did not con- tain the entire agreement, but that there was a parol condition leaving the vendee at liberty to refuse to buy, and making the transaction a mere option to purchase.^/ Finch, J., said: "The plaintiff sued on a written agreement for commissions. Rela- tively to that agreement the contract between Milliken and ' McFarlane v. Moore, i Overton, 174 ; ' Condit v. Cowdrey, 123 N. Y. 463. S. C. 3 Am. Dec. 752- 136 PAROL EVIDENCE. the defendant was a collateral matter, and one to which the plaintiff was neither a party nor a privy, and the papers them- selves do not purport to contain the entire contract. In such a case the writing is not conclusive, but either party is at liberty to prove by parol what the contract really was. 8 In Hope v. Balen, 58 N. Y. 380, defendants held a lease of premises from plaintiff. It was orally agreed that defendants should surrender at the end of the quarter, and that plaintiff should release them from the quarter's rent. Defendants exe- cuted a writing upon the lease, and delivered it to the plaintiff, to the effect that it was agreed that the term unexpired at the end of the quarter was thereby cancelled. At the end of the quarter defendants surrendered possession. In an action to recover the quarter's rent, it was held that parol evidence was competent to shov^ the whole agreement. " Where a verbal con- tract is entire, and a part only in part performance is reduced to writing, parol proof of the entire contract is competent." 9. When an agreement to employ a broker to buy land is silent as to his commissions, oral evidence of a prior agreement therefore is admissible.' But not to show that the deed was to contain certain peculiar restrictions and to be subject to the grantee's approval, the writing being silent on that matter." 10. In Filkins v. Whyland, 24 N. Y. 338, the writing was as follows : " F. bought of W. one house, $150. Received payment, W." Parol evidence of a warranty was approved, on the ground that it was not a contract of sale, but a mere receipt ; " it admit- ted that a sale has been had, but does not effect one." The court tried to distinguish Van Ostrand v. Reed, i Wend. 424. Followed in Perrine v. Cooky's Exrs., 39 N. J. L. 449. To the same effect, Allen v. Pink, 4 M. & W. 140. 11. In Wendlinger v. Smith, 75 Va. 309; S. C. 40 Am. Rep. 727, an executor contracted to sell land by a contract perfect and absolute on its face ; but annexed was a paper purporting to be an approval of the contract by the devisees, signed and sealed by four, and with five other seals with no names attached. Held, that parol evidence was competent to show that the written approval of the nine devisees was a condition of the contract. 12. So, where a building contract binds the contractor to erect dwellings in accordance with drawings and specifications Sayre v. Wilson, 86 Ala. 151. 'Id. INCOMPLETE AGREEMENTS. 137 alleged in the contract to be annexed thereto, but no drawings or specifications are annexed, oral evidence is competent to show what specifications are actually agreed upon. Haag v. Hillmier, — N. Y. — . A bill of sale may be shown by parol to be a mort- gage.' In Pierce v. Woodward, 6 Pick. 206, on a sale of goods parol evidence was allowed to establish the condition that the vendor would not ply his trade in the same neighborhood. 13. So on a written lease of a hotel, parol evidence was allowed to establish a parol contemporaneous agreement by the lessor not to engage in a rival business in the same city." And in Lewis v. Seabury, 74 N. Y. 409 ; S. C. 30 Am. Rep. 3 1 1 , a writ- ten lease was silent as to fixtures, but parol evidence was permit- ted to show that for an independent consideration the lessor orally agreed that the lessee should have the use of certain fixtures. 14. Parol evidence is admissible to show that an absolute assignment of a bond and mortgage was intended as collateral security alone.' So of a a deed of a patent.* So on a settlement of accounts, it may be shown that it was agreed that any balance found due the defendant should be applied on the purchase price of certain property.* 15. A mere bill of parcels may be shown to be a mortgage, but not so of a formal bill of sale." But where there is a transfer by a formal bill of sale, a parol agreement as to the application of the proceeds of the goods when sold, is competent in evidence.' 16. In Andrews v. Brewster, 124 N. Y. 433, the plaintiff, enti- tled to share in the estate of C, released in writing a claim against the executor, B., for failing to rent property of the estate, upon receiving her share of the estate from him, and his oral agree- ment to leave her enough of his own estate to make good her loss. The oral agreement was held provable, on the ground that the release " was not the repository of the agreement between the parties, but its execution and delivery was one of the obliga- tions under that agreement." ' Clark V. Washington, etc., Ins. Co., ' Fullwood v. Blanding, 26 S. C. 312. 100 Mass. 509 ; S. C. I Am. Rep. * Barry v. Colville, 129 N. Y. 302. 135. ' Redfield v. Gleason, 61 Vt. 220 ; S. C, ' Welz V. Rhodius, 87 Ind. i ; S. C. 44 15 Am. St. Rep. 889. Am. Rep. 747. ' Grant v. Frost, 80 Me. 202. Contra. Scholz v. Dankert, 6g Wis. ' Ewaldt v. Farlow,62 Iowa, 212. 416. 138 PAROL EVIDENCE. 17. To a bill of sale with the addition, " six per cent, off for cash," an oral agreement for six months credit may be added.' Where there was a receipted bill of sale of "good first and second-rate tobacco," it was held that orai evidence was admis- sible to show the terms of the agreement and to contradict the implication of a warranty.' On a sale of a milk-route and per- sonal property, there was a bill of sale receipted, specifying the property and the gross price. Evidence was admitted that ihe seller orally promised noL to peddle milk in that locality while the defendant carried on the business there.' The court said it was " a mere bill of parcels," and distinguished it from " a formal bill of sale," as in Bassett v. Percival, 5 Allen, 345. So an oral war- ranty of qualitj. of tea was allowed to be proved in addition to an invoice stating "quantity and price, and adding, " stored and insured free until river opens." * Where plaintiff and C. contracted to assign 150 bonds to defendant when issued, evidence was allowed that plaintiff and C. orally agreed with defendant and R. that seventy-five should go to C. or R., who should return them to plaintiff.^ On a sale of cloves, where a bill of particulars was rendered, parol evidence was allowed to show what kind of cloves were agreed for." On a contract for work, evidence was admitted as to the time when the work was to begin, the writing being silent on the point.' 18. Where there was a lease of a mill, the lessee to insure, and in case of total loss to make good the difference or replace the mill, evidence was admitted of an oral agreement that in case of total loss, and the lessee's option to replace, he was to have the insurance money.' So where a policy of insurance does not specify the place of payment of the premiums, the oral agreement therefor may be shown.' Where an order was given for a machine to be paid for by two horses twelve years old, evidence was admitted to identify the horses and show the representations about their age.'° So where the order specified kinds and prices, ' Linsley v. Lovely, 26 Vt. 123. • Bradford v. Manly, 13 Mass. 139 ; S. * Towell V. Gatewood, 2 Scam. 22. C. 7 Am. Dec. 122. ' Stacy V, Kemp, 97 Mass. 166. ' Case v. Phoenix Bridge Co., 34 N. Y. See also Atwater v. Clancy, 107 Mass. St. Rep. 581. 369. * Cumming v. Barber, 99 N. C. 332. ■* Foot V. Bentley, 44 N. Y. 167. ' Blackerby v. Cont. Ins. Co. 83 Ky. Atwater v. Clancy, 107 Mass. 369. 574- * Snow V. Alley, 151 Mass. 14; 23 N. E. '" Jackson v. Mott, 76 Iowa, 263. Rep. 576. INCOMPLETE AGREEMENTS. 139 and contained provisions as to rebate, and was signed only by the purchasers, who were jobbers, evidence was allowed that the sellers, the manufacturers, orally agreed to advertise the goods.' 19. Where title to a boat is in one, but half is owned by another, who desires to sell his interest to a third, and procures the former to execute a bill of sale of half to the third, in an action for the purchase price of such share parol evidence is com- petent to show the facts, as the bill of sale is not the written evi- dence of the contract between the beneficial owner and the purchaser, but the means of executing the contract.^ 20. Where the written contract is uncertain in its terms, parol evidence of a subsequent agreement making the terms certain is admissible.' 21. Where a contract gave defendant the exclusive right to sell plaintiff's goods for a specified commission, but contained no guaranty as to the amount of commissions, parol proof that the sole object of the contract was to enable defendants to procure advances froom third persons, and that the amount of commis- sions was guaranteed, was allowed.* 22. On a sale of lands and a store of goods, parol evidence is competent to add a contemporaneous oral agreement by the seller not to re-engage in the same business at that place.' 23. In Bryan v. Hunt, 4 Sneed, 543 ; S. C. 70 Am. Dec. 262, an action against a vendor for failure to deliver flour by a date specified in a written agreement, parol evidence was allowed of the purchaser's subsequent oral agreement, that if the tide did not rise in the river on which it was to be transported, it need not be delivered by that time. 24. In Brigg v. Hilton, 99 N. ¥.517, a writing acknowledged the receipt of an order for goods, and stated the time of delivery and the price. It was held that an oral warranty of quality might be proved, as the paper did not purport to be a complete con- tract, and even if conclusive as an agreement as to the part expressed, parol evidence was competent to show the rest. This was followed in Routledge v. Worthington Co. 119 N. Y. 597, ' Ayer v. R. W. Bell Manuf. Co. 147 * Grierson v. Mason, 60 N. Y. 394. Mass. 46. ' Fusting v. Sullivan, 41 Md. 162. ' Bennett v. Belt's Admr. 22 Mo. 154; Contra; Costello v. Eddy, 128 N. Y. S. C. 64 Am. Dec. 260. 650. •• Katz V. Bedford, 77 Cal. 3iq. iJoyle v. Dixon, 12 Allen, 576. 140 PAROL EVJDENCE. and in Bach v. Levy, 50 N. Y. Super. 519, oral evidence was admitted to add a guaranty to a contract foi the sale of tobacco. 25. On a written sale of a sewing-machine an oral agreement to supply the buyer with work may be shown.' Where thert is a contract to carry goods from A. to B., an oral agreement as to carriage beyond B. may be shown." On the assignment of a cause of action an oral agreement of the assignee to pay the attorney's fees is provable." 26. In DeCamp v. Scofield, 75 Mich. 449, an action on an agreement to pay a balance due on certain notes, parol evidence was held admissible to show that the plaintiff agreed first to- endeavor to collect from the maker of the notes, and had failed to do so. 27. Where a shipping bill provided for carrying peaches from A. to B., evidence was allowed of an oral agreement previously made, to carry without change of cars.* 28. In Juilliard v. Chaffee, 92 N. Y. 529, the plaintiff gave in evidence a paper signed by the defendant, stating that he had " borrowed and received " of S. M. & Co. the sums claimed, and that the same was " payable to them, or order, with interest.'' The defendant was allowed to prove that the instrument was executed as part of a prior oral agreement of the payees to advance the money in anticipation upon debts owing by them, on the defendant's promise to apply it thereon at their maturity, and that the writing should be executed, but returned to the defend- ants when the money was so applied ; and that defendants had applied the money as agreed. In Van Brunt v. Day, 81 N. Y. 251, defendant, in the same instrument in which he assigned a mortgage to plaintiff, guaran- teed absolutely to pay the mortgage in the event of failure to pay by the mortgagee. In an action upon the guaranty, held, that while proof of a contemporaneous parol agreement upon the part of plaintiff to keep the mortgaged premises insured for the pro- tection of defendant was inadmissible to qualify or change the guaranty, the facts that at such time plaintiff, in consideration of being permitted to retain $300 of the purchase-money of the ' Weeks v. Medler, 20 Kans. 57. ' Dodge v. Zimmer, no N. Y. 43. ' Riley v. N. Y. etc., R. Co. 34 Hun, 97. * Riley v. N. Y., etc., R. Co. 34 Hun, 97. Malpas V. London, etc., Ry. Co., L. To same effect : Malpas v. London, R. I C. P. 336. * etc., Ry. Co. L. R. i C. P. 336. INCOMPLETE AGREEMENTS. 141 mortgage, and of th^ assignment to her by the defendant of a policy of insurance on the premises, agreed to Iteep such premises insured until the mortgage should become due, which she neg- lected to do ; that the building on the premises was destroyed by fire, and that by reason of such neglect the security of the defend- ant was lost, might be shown to establish a counter-claim. " The parol agreement would not qualify or change defendant's underr taking; it would only give him, in case of breach, a right of action "vvhich might be set up as a counter-claim." Citing Batterman v. Pierce, 3 Hill, 171 ; Hope v. Balen, 58 N. Y. 380; Lewis v. Sea- bury, 74 id. 409. 29. In Paul V. Owings, 32 Md. 402, where a contract to pur- chase land was silent as to the manner and terms of payment, parol evidence was admitted to supply them ; and in Sire v. Rum- bold, 34 N. Y. St. Rep. 59, evidence was allowed to explain the character of " improvement " contemplated by a lease. 30. The case of Kentucky, etc., Co.v. Cleveland, Indiana appel- late court, 30 N. E. Rep. 802, is an exceedingly nice one. The plaintiff complained for breach of an oral agreement of defend- ant to settle with him for the damages, and in consideration of a release therefrom to pay him $1.50 per day during the time he should be disabled by an injury which was produced by the defendant's negligence, on the 21st of February, 1888; setting out a writing, signed by the plaintiff, dated March 17, 1888, by which, " for and in consideration of amount of money paid me while disabled by reason of an accident," etc., "and also in con- sideration of the doctor's fees while in attendance on me, I hereby waive all right to any and all claim for damages," etc.; alleging payment of the per diem allowance up to July 7, 1888, and non- payment after that date. There was a demurrer to the complaint, which was overruled, and judgment went for the plaintiff. A new trial was granted on another ground, but on this point the court observed: "It is maintained by counsel for appellant that the complaint is demurrable because it declares upon a parol agree- ment, and discloses that the final agreement of the parties was reduced to writing, thus merging all prior and contemporaneous parol arrangements; and it is further insisted that the writing shows no undischarged liability. It is true, where parties have gone to the pains of reducing a contract to writing, such writing, if complete on its face, will be held to be the sole repository of the ultimate intention of the parties upon the subject, and it can 142 PAROL EVIDENCE. not be modified or contradicted by parol. But where the writing- is obviously incomplete, and does not of itself constitute an enforceable contract, it is not only proper but necessary to allege and prove extrinsic facts, in order to give it legal effect. A writing may form but part of an agreement, and when this fact appears from the instrument itself, the whole agreement, including both written and parol parts, should be alleged. Freed v. Mills, 1 20 Ind. 27. The instrument under consideration is incomplete, and affords appellee no enforceable rights without the aid of extrin- sic facts giving it legal shape and application. It contains no executory duty on the part of the appellant which may be enforced in the absence of auxiliary provisions. It is unilateral in char- acter, and in legal effect it is but a release from the damages con- sequent upon the injury, and to that extent it is valid. Railroad Co. V. Welch, 52 111. 183. Besides, the consideration of a written instrument may always be inquired into byparol evidence, and recitals respecting the amount and payment thereof may be con- tradicted, except to the extent that the consideration might render nugatory some other substantial provision of a valid con- tract." This decision can be supported only by practically read- ing into the release the words " and to be paid," after " money paid," and the words " and as long as ' disabled,' " after " disabled," and such a course would seem inconsistent with the unambiguous meaning of the word " paid, and in contradiction of an absolute release. Extension to sealed instruments : This rule has been extended in some cases to sealed instruments. Illustrations: 1. So where the sureties on a bond enter inta a contemporaneous oral agreement by which one agrees to indemnify the other against loss, this does not contradict any^ of the terms of the bond, and may be proved by parol evi- dence. Barry v. Ransom, 12 N. Y. 462. Denio. J., said : "The engagements among themselves of the several parties wha have become bound to another by a joint or joint and several contract, have no necessary place in the instrument, between them and such other contracting party. They are foreign to the purpose and object and purpose of the principal contract, and are not generally to be looked for among its stipulations. * * * The form of the contract as between the obligors or promissors and the other contracting party does not prevent the introduction INCOMPLETE AGREEMENTS. 143' of parol proof to determine the relations of such obligors or promissors as between themselves.' 2. In an action in a case for rent, parol evidence is admissible to show that the lessor agreed to perform and insert a certain covenant which was omitted. Christ v. Diffenbach, i S. & R. 464; S. C. 7 Am. Dec. 624. But in Pennsylvania such evi- dence is always admitted collaterally, whenever equity would reform or set aside the instrument for fraud or mistake. And sc^ in Hultz V. Wright, 16 S. & R. 345 ; S. C. 16 Am. Dec. 575, parol evidence was admitted to show that it was the understanding of both parties to a lease that no rent should be payable for the last nine months. And in Stultz v. Dickey, 5 Binney, 285, proof was admitted of a custom to allow the tenant the away-going crop, although the lease gives no such right. And in Raub v. Barbour,. 6 Mackey, 245, where a lease covenanted to give the lessee^ an option to purchase the premises, parol evidence was allowed to prove an oral agreement of the lessee to divide with the lessor any profit he might make if he should assign the lease. Citing Lindley v. Lacey, 17 C. B. (N. S.) 578 ; Morgan v. Griffith, L. R. 6 Ex. 70 ; Erskine v. Adeane, L. R. 8 Ch. App. 756 ; Nickerson v. Saunders, 36 Me. 413 ; Fusting v. Sullivan, 41 Md. 162. And in Chester v. Bank of Kingston, 16 N. Y. 336, an action on a bond, parol evidence was admitted to show that it was executed as col- lateral security, and that the principal debt had been paid. 3. The point was decided in Blewitt v. Boorum, N. Y. Superior Court, 14 N. Y. Supp. 298; 39 N. Y. St. Rep. 244, an action upon a contract by which the parties of the first part granted to the parties of the second part the full and exclusive right and license to manufacture, sell and use a cer- tain invention covered by a patent issued to Russell during the term of the patent, and as consideration for such , grant the parties of the second part (the defendants) agreed to manufacture the patented article, and to pay to each of the parties of the first part the sum of two and one-half cents on each binder as royalty. The agreement was executed by all the parties under their respective hands and seals, and it was actually delivered to the plaintiff. The answer admitted the making of the contract sued on, and alleged as a defense that it was agreed between the parties at the time of the making of the contract that the same- ' To the same effect : Blake v. Cole, 22 Taylor v. Savage, 12 Mass, 98. Pick. 97. 144 PAROL EVIDENCE. was to take effect as to the plaintiff only when he should have acquired a one-half interest in the patent by performance of a certain agreement that he (the plaintiff) had made with Russell, the other party of the first part to the contract in suit, whereby the plaintiff was to acquire from Russell a one-half interest in the patent ; that the plaintiff never carried out such agreement with Russell, never acquired a half interest from Russell, and subse- quently abandoned all attempt to obtain an interest in such patent, and relinquished and transferred to Russell all his right, title and interest under the contract. At the trial there was no controversy as to the actual delivery of the contract, or a copy of it, to the plaintiff, but evidence to prove the oral agreement between the parties, as above stated, and that the plaintiff had failed to acquire Russell's one-half interest, was admitted under objection, and judgment went for the defendant. Freedman, J., said : " These findings are fatal to plaintiff's case, if the evidence upon which they rest was admissible, and the only question pre- sented therefore is whether or not it was error to receive such evidence. It is settled in this State that if a deed is delivered to a. party or his authorized agent, and not to a stranger, it is abso- lute, and parol evidence of conditions qualifying the delivery is inadmissible. Worrall v. Munn, 5 N. Y. 229, and cases there cited. It is also settled that parol evidence is admissible to show that a written paper, not under seal, which in form is a complete contract of which there had been a manual tradition, was never- theless not to become a binding contract until the performance of some condition resting in parol. Reynolds v. Robinson, 18 N. Y. St. Rep. 235 ; Harnickell v. New York Life Ins. Co., in N. Y. 390. It remains to be seen what the rule is as to an instrument under seal, which is not a deed, and does not relate to the trans- fer of the possession of land. Upon this point great confusion €xists in the books. Formerly the tendency undoubtedly was to distinguish generally between sealed and unsealed instruments. Of late the tendency has been to disregard the distinction between sealed and unsealed instruments whenever it can be done without a violation of some settled principle of law. The precise point now under consideration has never been put at rest. *• * * A review of all the cases to which our attention has been called upon this point would serve no useful purpose. Suffice it to say that a caf eful analysis of them with reference to the state of facts peculiar to each, shows that the confusion which does exist arises INCOMPLETE AGREEMENTS. 145 not SO much from the decisions as from dicta which are obiter, and that the strict enforcement of the rule which rejects parol evidence qualifying the delivery has been almost exclusively in cases of instruments under seal in which the delivery of the instrument constituted or involved a symbolic transfer of the possession of land. After due consideration of all that has been urged on both sides, I am of the opinion that the rule prohibiting parol evidence as to qualified or conditional delivery should be confined to the class of instruments last referred to, and that it should not be extended generally to all executory contracts under seal. If this view is sound the evidence in this case was properly admitted, and the exceptions taken by the plaintiff are untenable." 4. In Bretto v. Levine, —Minn. — ; 52 N. W. Rep. 525, a deed of real estate, which embraced a store building provided with shelving, contained the clause : " This grant includes all the shelving in the building." Held, that parol proof of a sale of personal property at the same time was competent. The court said: "Although the agreement, assuming that it included the personal property, as well as the real estate, was entire in its nature, it related to subjects so different that different modes of carrying it into execution were appropriate, if not neces- sary. As to the personal property, all that was necessary to transfer the title was the agreement of sale and the payment of the price. The real estate could only be legally conveyed by deed. That was the ordinary and legally proper purpose of such an instrument. If the deed had not contained the clause above recited, there would be not much reason to support a claim that the deed of the real estate was intended by the parties to embrace, and become the exclusive evidence of, all which they might have agreed upon or intended to accomplish, so as to exclude oral evidence of a sale of the personal property as well as of the real estate. Such an instrument would not be legally presumed to- have been intended to have a wider or different effect than that which, and which alone, such instruments are commonly anra, which was an action to cancel the lease, parol testimony was given which showed that " the plaintiff read the lease and knew its contents, and knew that it contained no covenant to put in more furniture than was already in the house, and knew that the furniture which they say the defendant had promised to put in had not all been put in." And in respect to the doctrine of collateral unexpressed engagements, the court said no reference had been made to it because " if the present case could be brought within the principle of those cases, it would not hold (avail?) the plaintiffs, as their only remedy would be an action of damages for the breach of the parol contract. The validity and effect of the deed could not be made to depend upon the performance of such collateral contract. To except from the rule that a deed cannot be controlled by contemporaneous oral stipulations cases in which such stipulations were an inducement to the execution of the writing, would be to abrogate the rule, for in almost every contract the undertakings of one party are a con- sideration for those of the other, and to say that the writing shall not take effect unless the oral stipulation is performed, would produce even a more serious result than not to enforce such oral stipulations." In Dooley v. Baynes, 86 Va. 649, it is said : ■" There is surely no principle which excludes parol evidence to ^how that a deed, which is apparently an absolute deed, is in reality a partition deed between coparceners, and therefore no conveyance at all." But it is not permitted to show by parol that a deed was not intended to be inoperative, or that the grantee was to reconvey to the grantor on request. Hutchins v. Hutchins, 98 N. Y. 56. This doctrine was followed, citing the last INCOMPLETE AGREEMENTS. 171 case, in Woodard v. Foster, 64 Hun, 147, where F. deeded premises to the husband of W., who conveyed them to his wife. In ejectment by her, F. was allowed to prove that at the time of the conveyance to the husband the parties agreed that F. should have the use of the premises for his life. The court observed : " The obvfous result of the evidence introduced to establish this claimed defense, if given effect, was to reduce the title conveyed by the defendant's deed, and to carve out of an absolute title in fee simple a life estate in the grantor. Thus the questipn is pre- sented whether parol evidence was admissible for that purpose. That it was inadmissible under the general rule prohibiting the admission of parol contemporaneous evidence to contradict or vary the terms of a valid written instrument, there can be no doubt. It is however contended that the evidence was admis- sible under an exception to the rule which permits parol evidence when the original contract is verbal and entire and a part only is reduced to writing. The existence of this exception must be rec- ognized, but evidence is not admissible under it which contradicts or varies the written instrument ; to be admissible it must be con- sistent with it. Chapin v. Dobson, 78 N. Y. 74 ; Thomas v. Scutt, 127 id. 133, 138. Therefore the evidence was not admissible xinder that exception, because it was not consistent with, but in contradiction of, the deed. * * * We are of the opinion that the evidence admitted fell within the condemnation of the general rule excluding parol evidence when in effect it would change or destroy the agreement between the parties which they had reduced to writing." 6. In Johnson v. Oppenheim, 55 N. Y. 280, it was held that evidence of statements by the lessor upon the execution of the lease, that no change should be made, during the term in the occupation of the adjoining lot which would interfere with the enjoyment of the demised premises or with the lights, was prop- erly rejected. Allen, J., said : " To engraft a new condition upon the lease by which the term was to end upon any contin- gency before the expiration of the time limited, would have been to change and vary the terms of the written agreement in an essential particular. The case is not within the rule which allows a collateral agreement, made prior to or contemporaneous with a written agreement, but not inconsistent with or affecting its terms, to be given in evidence." Distinguishing Erskine v. Adeane and Morgan v. Griffith. So evidence has been held inadmissible to 172 PAROL EVIDENCE. « shpw that the lessor orally promised to refrain from carrying on the butcher's business in the same block.' Or to ditch the land.* 7. A very recent review of the New York cases and the doc- trine of Chapin v. Dobson may be found in Costello v. Eddy, in the Supreme Court of New York (34 N. Y. St. Rep. 565), the opinion in which was adopted by the Court of Appeils on their/ affirmance of the decision (128 N. Y. 650). The Supreme Court said : " In Bayard v. Malcolm, i Johns. 466, Kent, Ch. J., incident- ally lays down the rules as follows in discussing a question of pleadings: ' Nor could 2, parol warranty have been shown had the suit been brought on one ; for the contract being reduced to writing excludes all other verbal negotiations and promises as being resolved into writing, which is the consummation and only evidence of the agreement of the parties.' In Colwell v. Law- rence, 38 N. Y. 73, Miller, J., in delivering the opinion of the court, says : ' The rule is well settled that all conversations had prior to the execution of the writing, become merged in the instrument when executed. In Wilson v. Deen, 74 N. Y. 534, Rapallo, J., in writing for the court, in upholding and following . this rule in that case, uses this language : ' We think it impossible to sustain these conclusions without disregarding the established rule of law, that a written contract merges all prior and contem- poraneous negotiations and oral promises in reference to the same subject, and that when the terms of a lease are in writing, the rights and duties of the parties depend upon the terms of legal intendment of the lease itself, or, as otherwise expressed, that it is conclusively presumed that the whole engagement of the par- ties, and the extent and manner of their undertaking, are em- braced in the writing.' In Filkins v. Whyland, 24 N. Y. 339, Wright, J., in delivering the opinion of the court, says: 'When a contract is consumrnated by writing, the presumption of law is that the written instrument contains the whole of it, and will not allow to be showed oral representations or stipulations preced- ing or accompanying the execution of the instrument, differing from or not inserted in it. The agreement to which the con- tractors bound themselves is to be ascertained exclusively by the writing.' In Schmittler v. Simon, 114 N. Y. 183, the court reiterates this general rule in this form : ' The general rule ' Scholz V. Dankert, 69 Wis. 416. But see Lewis v. Seabury, 74 N. Y. ' Diven v. Johnson, 117 Ind. 512. 409; S. C. 30 Am. Rep. 311. INCOMPLETE AGREEMENTS. . 173 is that where an agreement is reduced to writing, it as between the parties is deemed to merge and overcome all prior or contemporaneous negotiations and declarations upon the subject, and that no oral evidence is admissible to vary, explain, or contradict its terms.' " The authorities relied upon to establish the plaintiff's cori- tention fail, we think, in their application to this case, and are distinguishable from it in principle. They apply to a distinct collateral agreement on one side, which influences and forms the consideration of the agreement on the other side. In Batterman V. Pierce, 3 Hill, 171, the consideration for the note, which was signed by one party only, was not expressed in it, and the court held that it was competent to prove as between the parties the conditions upon which it was given. In the case at bar the con- tract was signed by both parties, and the consideration for the $2,000.00 was expressed in the writing, and the instrument pur- ports upon its face to be a complete agreement. Potter v. Hop- kins, 25 Wend. 419. In Chapin v. Dobson, 78 N. Y. 74, the* writing signed by one party and approved by the other, was that the machinery should be delivered * on terms stated,' and the court put the decision on the ground that the original contract was verbal and entire, and part only reduced to writing, and cited on that head 25 Wend., and 3 Hill, supra. In Dodge v. Zimmer, 1 10 N. Y. 43, parol evidence was allowed to explain an ambiguity appearing on the face of a paper or agreement, and matters not claimed to be embraced in it or to constitute a part of it were allowed, so that we fail to see how that case is applicable in principle to the one at bar. " The distinction seems to be where the writing purports upon its face to contain the entire agreement of the parties, it must have that effect, but when upon its face it purports to rest partly in writing and partly in verbal agreement or negotiation, it may be proved and enforced as a whole, or if it appears that a parol contract is independent of, and collateral to, a written agreement, it may be sued upon as an independent and distinct cause of action, leaving the writing to stand and to be enforced according to its terms. Chapin v. Dobson, 78 N. Y. 74, supra. But that rule is not applicable to this case." 8. In Scholz v. Dankert, 69 Wis. 416, an action for rent, parol evidence was held inadmissible to show that the lessor, as an inducement to the lease, orally promised riot to engage in the 174 PAROL EVIDENCE. » butcher business in the same block, during the term, and broke that promise- The court merely said: "The majority of the members of this court are of the opinion that the learned county judge properly excluded the offered evidence, and hold that the evidence offered does tend to add to and change the terms of the written lease." 9. In Fusting v. Sullivan, 41 Md. 162, the court said: "The test of admissibility in such cases is whether the evidence offered tends to alter, vary or contradict the written contract, or only to prove an, independent collateral fact, about which the written contract was silent. In the former case the testimony is admissible ; in the latter it is competent and proper. Although the good-will of the store and the agreement not to set up another were, according to, the statement of Shipley, material elements of the consideration to be given for the purchase of the property, yet they were not necessarily involved in the purchase, nor referred to in the contract, and were in fact incidental and col- lateral.' 10. In Welz v. Rhodius, 87 Ind. i ; S. C. 44 Am. Rep. 747, contemporaneously with a written lease of a hotel the lessor orally agreed not to engage in a rival business in the same city. In an action by the lessee for a breach of that agreement the court said r 'Not disputing the general rule that parol testimony cannot be received to vary, contradict, add to or subtract from the terms of a valid written instrument, counsel for the appellant argue that the case is not within the rule ; that the parol contract declared on is a separate contract, collateral only to the lease, in no man- ner tending to modify or affect any stipulation in the lease or right or obligation created by it ; that the parol promise of the defendant was made in consideration that the plaintiff would purchase the hotel furniture and accept the lease of the hotel itself on the terms named in the writing, and otherwise than this, is an independent contract. We concur in this view. The cases are numerous in which this court has recognized and declared the admissibility of parol evidence to show the real consideration of a deed, mortgage, or other written contract, whether in form uni- lateral ox inter partes, and that the consideration may be shown to have been different from that expressed in the writing.' " The proposition of counsel for the appellee, that when the consideration expressed is 'contractual,' it 'can no more be varied by parol than any other portion of a written contract,' is true, but INCOMPLETE AGREEMENTS. 175 not to the extent which counsel seem to claim. If A. and B. bind themselves in writing by mutual promises, saying nothing of any other consideration, it is clear that nothing can be shown by parol to vary the meaning or force of the promise of either party ; nevertheless, it may be shown that in consideration of the making of the written contract A. surrendered, or agreed by parol to surrender, for cancellation, an obligation which he held against B. The contract made, the promise given by either party, as expressed in writing, cannot be modified ; but further or addi- tional consideration may be shown, even though it consist of a promise of one party to the other, if it be to do something out- side of and so far distinct from the written promise or contract as that the latter is not varied or modified. "The case before us however does not, strictly speaking, involve proof of an additional consideration for the written lease beyond that expressed therein. On the contrary, the considera- tion of the parol promise sued on is shown to have been the lease itself and the purchase by the appellant of the hotel furniture and fixtures. In the language of the complaint : ' In consideration that the plaintiff would purchase said furniture and lease said property ' etc., ' the said defendant agreed to and with said plain- tiff", verbally,' etc. This is clearly a collateral undertaking, which in no manner restricts or enlarges any stipulation of the lease, or any obligation of either party, in respect to the subject-matter of that instrument. If at the same time the lease was made the parol agreement had been reduced to writing, in a separate instrument, and signed by the parties, it would be regarded as a collateral contract, not necessary to be referred to in any pleading based upon the lease ; and it is no less a separate and collateral contract because made by parol. There is, as we conceive, no more reason for saying that the written lease excludes the proof of the alleged parol promise, than that it would also exclude proof of the contract for the sale of the furniture, if there had arisen a dispute between the parties in reference to that contract ; as for instance, if the plaintiff' had claimed that he did not get possession of all the articles purchased. If the agreement not ta keep another hotel is merged in the lease, it may just as well be said that the contract for the sale of the furniture is likewise merged. That such collateral agreements may be enforced has been often judicially declared. " To illustrate further the collateral character of this agree- .176 ~ PAROL EVIDENCE. ment, let us suppose that instead of the appellee it had been a third person, who, upon consideration of the acceptance of this lease and purchase of the hotel furniture from the appellee by the appellant, had promised to retire and refrain from keeping hotel in Indianapolis. It is too clear for argument that such an agree- ment, though resting on the same consideration as the one pleaded, would be distinct froin the lease, and could not be deemed to vary or affect in any way the terms of that instrument. The two agreements are no less distinguishable from each other because both made between the same parties. Counsel do not, as we understand them, deny that if the appellee had conveyed the property in fee to the appellant, specifying in the deed the price in money paid or agreed to be paid, it would have been competent to show such additional agreement, by parol, as is alleged ; and the fact that an estate for years was created by a lease, wherein the payment of rent and other matters appropriate to be found in such a writing are provided for, and the lease isigned by both parties, does not seem to us to make the case essentially different in this respect." II. In Lewis v. Seabury, 74 N. Y. 413; 30 Am. Rep. 311, the court said: "The lease was in writing, and contained no stipulation . of the defendant as to fixtures, but a clause that the plaintiff should make all 'improvements and repairs' necessary to be made on the premises during the continuance of her term, and that she should at the end of the term leave on the premises all the repairs and improvements that may have been made or put on the same. It is insisted by the defendant that this writing is conclusive of the contract, and precludes any evidence of the oral agreement as to fixtures." The plaintiff was allowed to give evidence- that the defendant, for an independent consideration, promised that cer- tain fixtures should remain for the plaintiff's use, but that the out-going tenant removed them ; that defendant promised to replace them, but did not, and that plaintiff supplied them a;t her own expense, defendant agreeing to make it right. The court continued : " The case is undoubtedly very near the line, but I am inclined to think that such parol agreement was a separate and independent one, touching a subject not covered by the lease, and made for an independent consideration paid by the plaintiff, not stipulated for nor referred to in the lease. The promise that certain specific fixtures then on the premises should INCOMPLETE AGREEMENTS. 177 be retained and remain there, so that the plaintiff might enjoy the benefit of them if she took the lease, may be sustained as a previous distinct collateral agreement, upon a collateral and inde- pendent consideration, which did not merge in the subsequent written contract of hiring. See Erskine v. Adeane, L. R. 8 Ch. App. 756; Morgan v. Griffith, 6 Exch. 70; Hope v. Balen, 58 N. Y. 380. The case is distinguishable from such cases as Johnson V. Oppenheim, 55 N. Y. 280, where the parol agreement neces- sarily affected the premises themselves, and if admitted would have varied the terms of the instrument as to the identical prop- erty leased." 12. In Lynch v. Hunneke, N. Y. Super. Ct., General Term, 19 N. Y. Supp. 718, plaintiff took a written lease of the upper floors of a building, " with the appurtenances," the only access to which was by means of a hall and stairs, on the verbal condition that defendant would not rent the lower floor for a saloon, and would not permit a door to be cut in the wall between the hall and lower floor. Held, in an action to abate a door cut in violation of such conditions, that the court erred in excluding evidence of the parol condition, since the same formed part of the considera- tion of the lease. Freedman, J., observed : "The general rule, which excludes conversations, negotiations and parol agreements, prior to the execution of a written agreement relating to and springing out of such conversations, negotiations, etc., does not apply (i) when the original contract, although verbal, yet was fentire, and only a part of it was reduced to writing, in which case the part not so reduced can be proved by parol ; and (2) when the consideration, or a consideration further than that expressed in the writing, does not appear in the writing, in which case the con- sideration, or the further consideration, may be proved by parol. Hope V. Smith, 35 ^. Y. Super. Ct. 458, affirmed, 58 N. Y. 380. So parol evidence is always admissible as to the meaning which the parties themselves attached to a particular word or phrase in the contract.. Such evidence does not contradict or vary the terms of the written contract, but is explanatory thereof. In the case at bar the lease was for the six lofts, ' together with the appurtenances.' These words gave to the plaintiffs whatever was attached to or used with the premises, as incident thereto, and convenient or essential to the beneficial use and enjoyment thereof, and the plaintiffs took any easement or servitude used or enjoyed with the demised premises. Doyle v. Lord, 64 N. Y. 432. 178 pArol evidence. As the appurtenances were not specified, parol evidence was admissible to show their character and extent, and that being so, parol evidence was admissible to show that the parties, prepara- tory to the execution of the lease, met and discussed such character and extent, and agreed that the appurtenances should include all that they appeared to include, and that the defendant would not make a change in such appearances in derogation of his grant, and that in strict reliance • upon the promise of the defendant not to change the appurtenances as they then existed and were understood, the plaintiffs executed the lease. Parol evidence to this effect was partly given and partly offered to be given, but rejected. Moreover the plaintiffs did show that before the lease was executed the parties did meet and have a discussion ; that in the course of it the defendant proposed that he should be allowed in express terms to be inserted in the lease to reserve the right of cutting a door from the hall into the saloon, and that the plaintiffs so strenuously objected to it, giving reasons for their objections, that the defendant expressly waived the point in plaintiffs' favor." Mr. Abbott says (Trial Ev. 524, note): "A part of the apparent conflict in the decisions may be explained if we observe that it is one question whether such a collateral agreement may be proved for the purpose of sustaining an action for its breach, and a different question whether it may*be proved for the pur- pose of defeating an action on the written le^se." Mr. Jones gives the following "test for determining whether parol agree- ment is collateral " : " If it interferes with the writing it can- not be proved ; if on the other hand, it relates to a matter beyond the scope of the written contract, the writing does not affect it. * * * In each case it must be determined from the character of the writing and from the circumstances of the case, wjiether the parol agreement offered to be proved was in regard to a matter which it is reasonable to infer the parties thought settled by the terms of the writing, and if it was, evidience to show it should be excluded. The writing must speak just so far as it is is fair to conclude that the parties, acting as reasonable men and using intelligible language, intended it should speak, and no further." ^ ' Jones Const. Cont. sec. 141. MERCANTILE CONTRACTS. 179 CHAPTER Xiri. Mercantile Contracts. Sec. 53. Subject matter and circumstances. 54. Conversations and acts of parties. 55. Practical interpretation. 56. Limitation of general rule. Sec. 53. Subject matter and circumstances. Parol evidence is admissible, in the construction of con- tracts, to define the nature and qualities of the subject- matter, the situation and relations of the parties, and all the circumstances, in order that the court may put them- selves in the place of the parties, see how the terms of the instrument affect the subject-matter, and ascertain the signification which ought to be given to any phrase or term in the contract which is ambiguous or susceptible of more than one interpretation ; and this, although the result of the evidence may be to contradict the usual meaning of terms and phrases used in the contract ; but if the words are clear and unambiguous, a contrary inten- tion may not be derived from the circumstances. It has been said by an eminent authority: "Although a writ- ten agreement cannot be varied (by addition or subtraction) by proof of the circumstances out of which it grew and which sur- rounded its adoption, yet such circumstances are constantly resorted to for the purpose of ascertaining the subject-matter and the standpoint of the parties in relation thereto. Without some knowledge derived from such evidence it would be impossible to comprehend the meaning of an instrument, or the effect to be given to the words of which it is composed. This preliminary knowledge is as indispensable as that of the language in which; the instrument is written. A reference to the actual condition of things at the time, as they appeared to the parties themselves, is. 180 PAROL EVIDENCE. often necessary to prevent the court in construing their language "from falling into mistakes and even absurdities." ' Illustrations : i. The leading case under this rule is Bradley V. Washington, etc., Steam Packet Co. 13 Peters, 89, A. D. 1839. This was an action on the case by the ^defendants in error, to recover for hire of the steamboat Franklin. The agreement of hiring grew out of the following paper: "I agree to hire the steamboat Franklin until the steamboat Sidney is placed on the route, to commence to-morrow, 20th instant, at ($35) thirty-five dollars per day, clear of all expenses, other than the wages of Captain Nevitt. W. A. Bradley, 19th Novem- ber, 1 83 1." And a written acceptance of the same signed by the president of the company. The question was whether the plaintiff in error was bound to pay for the use of the Franklin during the time when the navigation of the Potomac was pre- vented by ice. Parol evidence was offered on his part and excluded, and the defendant in error had judgment for the use of the boat during that period. The court reversed the judgment for this error, and observed : " Without attempting to do what others have said they were unable to accomplish, that is, to rec- oncile all the decisions on the subject^ we think that we may lay down this principle as the just result. That in giving effect to a written contract, by applying it to its proper subject-matter, extrinsic evidence may be admitted to prove the circumstances under which it was made, whenever, without the aid of such evi- dence, such application could not be made in the particular case. With this principle in view we proceed to inquire whether the evidence offered by the defendant in this case ought to have been received by the court. Now had the evidence been received, it would have disclosed the following state of facts : That the route mentioned in the contract was one on which the plaintiff in error transported passengers, and also the mail ; that the steamboat Sidney, mentioned in the contract, was designed to perform this service, and that the Franklin was wanted for the same purpose ; that the Sidney was then at Baltimore for the purpose of being fitted with her engine and equipments ; that although the trans- portation of passengers and the mail was carried on by the plain- tiff in error, in a steamboat, whilst the river was open ; yet when the river was closed by ice, so that the navigation was obstructed, ' Reed v. Insurance Co., 95 U. S. 83. MERCANTILE CONTRACTS. 181 the plaintiff in error then transported passengers and the mail all the way overland, to Fredericksburgh ; that when the river was thus obstructed, the plaintiff in error could not and did not use a steamboat ; and that all these facts were known to the defendants in error. We think that this evidence ought to have been received, because it would have tended to show, by the circum- stances under which the contract was made, what was the intention of the parties, and in the language of the rule which we have laid down, that the contract, without its aid, could not be applied to its proper subject-matter." 2. In Barry v. Bennett, 7 Mete. 354, A. D. 1844, A. mort- gaged to B. " one ton of wire," and afterward sold to D. all his wire, amounting to 2,662 pounds ; B. brought this action to recover of D. the value of the wire. B. was allowed to show by parol that A. and B. did not mean a precise ton in weight, but a cer- tain mass of wire stored in a certain place, and estimated as a ton. 3. In Knight v. N. .E. Worsted Co. 2 Cush. 271, 283, A. D. 1848, Chief Justice Shaw observes: " In expounding a written contract, although parol evidence is not admissible to prove that other terms were agreed to, which are not expressed in the writing, or that the parties had other intentions than those to be inferred from it, yet it is competent to offer parol evidence to prove facts and circumstances respecting the parties, the nature, quality and condition of the real and personal property which constitute the subject-matter respecting which it is made." 4. Bainbridge v. Wade, 20 L. J., N. S., Q. B. 7, A. D. 1850, was an action on a guaranty of " the payment of any sums of money due to you from Mr. Andrew Little, of Richmond, the amount not to exceed at any time the sum of one hundred pounds." The defendant insisted that the form of the instrument necessarily limited the liability to debts already contracted at its date. Lord Campbell says : " But evidence may be received of the circumstances of the party at the time when the instrument was framed, in order to show in what sense the instrument was made. * * * The instrument may be construed to apply only to a further debt. I should think that is the natural con- struction. But when we find that the defendant knew very well that Little had no dealings with the plaintiff, what other construc- tion can be put upon it, but that if credit is given to Little, the defendant would be Uable to the extent of ;^ 100 ? " 5. Lowry v. Adams, 22 Vt. 160, A. D. 1850, was an action on 182 PAROL EVIDENCE. a written guaranty, addressed to no one in particular, to be responsible for goods to be bought by another. The question was, whether its efficacy was exhausted by a purchase from one party upon its credit, or whether it operated as a continuing guaranty to other vendors who sold on the strength of it. The court remark : " For the purpose of ascertaining the intent of the parties in entering into any contract, courts will look at the situa- tion of the parties making it, the subject-matter of the contract, the motives of the parties in entering into it, and the object to be attained by it; and even in cases where the contract is reduced to writing, will allow all these circumstances to be shown by parol evidence, if the intent of the parties upon the face of the contract is doubtful, or the language used by them will admit of more than one interpretation. When from the contract itself and all the surrounding circumstances, the true object and intent of the parties has been ascertained, courts will enforce the contract according to that intent, unless there be found in the way some stubborn, inflexible rule of law, absolutely requiring a different determination." The judge reviews the circumstances as shown by the proof, and comes to the conclusion that the defendant must have intended a general letter of credit, and reverses the judgment. 6. Noyes v. Canfield, 27 Vt. 79, 1854, was an action upon a written agreement to transport the plaintiff's " freight " during the navigable season of 1852, at a fixed price per ton. For the purpose of showing the meaning of tliis expression, as used by the parties, and that it was not intended to include hay, parol evidence was admitted, under objection, showing the nature, character and extent of the plaintiff's freighting for several years previous to the making of the contract, that the defendant during those years had done the plaintiffs freighting under similar con- tracts, and that the defendant was familiar with the plaintiff's business and the kind of property he had had transported. On review this was held proper evidence. 7. Blossom v. Griffin, 13 N. Y. 569, A. D. 1856, was an action against defendants as common carriers, to recover for damage caused to merchandise by an accidental fire. The defendants had signed a receipt for the goods, reciting that they were marked for New York, and expressing that they were "to be forwarded. Defendants were both common carriers and. forwarders. Evidence was received of an oral agreement previously made by defendants MERCANTILE CONTRACTS. 183 with plaintiff to carry his rnerchandise of the description in ques- tion to New Yorlc, at a stipulated price. The referee found that . the goods were received by defendants as common carriers, and rendered judgment against them. This was affirmed, the court holding that the receipt amounted to an agreement, but that the evidence was properly received. Comstock, J., after arguing that the goods might be recovered for under the parol agreement, independent of the agreement in the receipt, proceeds: "But the receipt itself, in my opinion, admits of a different interpreta- tion from that which has been thus far conceded. In construing this, as every other writing, it is proper to look at all the surround- ing circumstances, the pre-existing relations between the parties, and then to see what they mean when they speak. If no facts had been shown outside of the receipt itself, it might and probably would have imported siniply an obligation to deliver the goods to some safe and responsible carrier, to be transported to their destination. But calling in the aid of all the circumstances, view- ing the defendants also as carriers, and looking at their existing obligations to the plaintiffs, a fair exposition of the language used rs that the property was to be " forwarded," not in the exact and technical sense which excludes the idea of transportation, but to be carried forward to its destination, as marked on the goods and expressed in the receipt, by their own line of conveyance, accord- ing to their antecedent agreement. There is no rule which requires the words of a contract to be construed in their technical sense. In general- the rule is the reverse, and there is certainly no necessary meaning of the phrase ' to forward,' which excludes the interpretation suggested. There can be no" doubt that this was what the parties intended, and I am quite clear that in adopt- ing such a construction, we do no violence to the language in which they expressed themselves." Johnson, J., after conceding that the receipt unexplained would import only the obligation of forwarders, proceeds : " But whenever it becomes necessary for the court, in order to interpret an instrument, to resort to proof of extrinsic facts at all, it ought to hear all the facts and circum- stances legitimately bearing upon the subject to which the instru- ment relates. It should then surround itself with all the material facts and circumstances which surround the parties at the time, and occupy as nearly as possible their position. Hence proof of the other facts connected with this transaction became not only important, but absolutely necessary, to enable the court to per- 184 PAROL EVIDENCE. form its duty of interpreting the writing and determining the true intent and meaning of the terms employed." 8. Price v. Mouat, ii C. B. N. S. 508, 1862, was an action by servant against master for wrongful dismissal. The agreement of hiring was in writing. The defendant dismissed the plaintiff because'he refused to fold lace on cards, as desired. The plaintiff offered to show by parol that he was hired in the capacity of " lace buyer," and that his refusal was therefore justifiable. The evidence was admitted, the writing being silent as to the capacity in which the servant was hired. 9. Griffiths V. Hardenbergh, 41 N. Y. 468, 1869. In this case there was a bond of indemnity to the sheriff for levying, etc., under an execution. The action was brought to recover indemnity for damages recovered against the sheriff for entering a dwelling- house to make a levy, previous to the execution of the bond. Evidence that such entry was made at the request and by the advice of the obligor, and that at the time the sheriff had refused to proceed unless indemnified by the obligor, was held admissible. " This is not a modification of the contract," says the court, " but an interpretation of it by the light of the surrounding facts as they existed at the time of its execution and delivery." 10. In Peisch v. Dickson, i Mason, 9, A. D. 1815, Judge Story observes: "There seems to be an intermediate class of cases, partaking of the nature both of patent and latent ambiguties, and that is where the words are all sensible and have a settled meaning, but at the same time consistently admit of two inter- pretations, according to the subject-matter in the contemplation of the parties. In such a case I think that parol evidence might be admitted to show the circumstances under which the contract was made, and the subject-matter to which the parties referred." He admitted parol evidence in this case. 11. In Burr v. Broadway Ins. Co., 16 N. Y. 267, there was an insurance on a building " on the No. west corner," etc. The insured owned the building on the northwest corner, and also one on the southwest corner, corresponding with the other and with the description of the policy in other particulars, except in one particular in which it answered to the survey. It was held that extrinsic evidence was admissible to show that the southwest corner was intended. But parol evidence is not admissible to show, in an action on an insurance policy which clearly de- MERCANTILE CONTRACTS. 185 scribes the policy, that it was the intention to insure difFerent property.' 12. Such e\{idence was accepted to prove the meaning of the, word "team"^ (this included declarations of the parties); of " eleven thousand feet of lumber now in the shop";' of "all the pine timber, twelve inches heart and up'V of "early spring";* of "in a good and substantial manner, as flood dams should be built in each stream, cribbed, sparred," etc. f of " good fine wine "f of hops "of the first quality";* "certain notes";' "candlestick . complete " ; "" " Cooley's Hay Stackers." " 13. ' In Crosby v. Pres't, etc., 128 N. Y. 641, a canal company contracted for the building of boats, and -furnished some of the lumber to the builders, but whether with an intention of absolute sale or that it should be used only in the construction of the boats, was disputed. The order from the builders commenced with the words " Please send us " the following lumber. After shipment, the company forwarded its bill, made out in the usual form on one of its blank bill-heads. The order and bill were both introduced to show an absolute sale in an action against the com- pany for retaking the lumber from those to whom the builders- had sold it. Ne/d, in such an action that inasmuch as the bill, which was not contemporaneous with the contract, had an equiv- ocal meaning, and had been used against the company as an admission of sale, the company was entitled to show by parol that its object was merely to advise the builders of the value of the lumber which would be charged against the boats, and that such an explanation was not an attempt to alter or vary a written contract. 14. Where a contract to do two hundred dollars' worth of grinding contains no terms, they may be shown by parol.'^ Where there is a contract to carry goods on a railway, to a named station, and there are two stations of that name, the one intended may ' Holmes v. Charlestown M. F. Ins. Co. ' Quigley v. DeHaas, 98 Pa. St. 292. 10 Mete. 211 ; S. C. 43 Am. Dec. 428. ' Hogins v. Plympton, 11 Pick. 97. Sanders v. Cooper, 115 N. Y. 279; S. ' Wallace v. Rogers, 2 N. H. 506. C. 12 'Am. St. Rep. 801. ' Bell v. Martin, iS N. J. L. 167. ' Ganson v. Madigan, 15 Wis. 144; S. ■' Sari v. Bourdillon, i C. B., N. S. 188. C. 82 Am. Dec. 659. " Clark v. Crawfordsville Coffin Co. 125^ ' Galen v. Brown, 22 N. Y. 37. Ind. 277; 25 N. E. Rep. 288. * McKenzie v. Wimberly, 86 Ala. 195. " Inglebright v. Hammond, 19 Ohio, ' Phoenix Iron Co. y. Samuel, Pa. 337; S. C. 53 Am. Dec. 430. St. . 186 PAROL EVIDENCE. be shown by parol.^ So where by a bill of lading goods were to be delivered at " the Essex Railroad wharf," and there were two wharves thus called, evidence was allowed to show which was intended.^ 15. In Merriord v. U. S. U. S. , proposals for bids for 4,400,000 pounds of oats for army purposes were advertised by the United States. M. made several bids'for 1,600,000 bushels at varying prices. H. also made bids. One bid of M. was accepted for 1,600,000 pounds, and one bid of H. for 2,600,000 pounds, was accepted, and contracts were made with th^ parties identical in form. Each contract contained a clause by which, in addition to the specific quantity of oats therein mentioned, the contractor agreed to supply such other quantity, more or less, as might be required for the wants of the station where the oats were to be delivered. Held, that the government was not obliged to receive from M. oats beyond the amount for which his bid was accepted, even though the government had use for a greater quantity of oats, and M. was able to and offered to supply such oats. The court said : " It is a fundamental rule that in the construction of contracts the courts may look not only to the language employed, but to the subject-matter and the sur- rounding circumstances, and may avail themselves of the same light which the parties possessed when the contract was made. Nash V. Towne, 5 Wall. 689; Barreda v. Silsbee, 21 How. 161 ; Shore v. Wilson, 9 CI. & Fin. 555; Macdonald v. Longbottom, i El. & El. 987 ; Mumford v. Gething, 29 L. J. (N. S.) C. P. 1 10 ; Carr v. Montefiiore, 5 Best & S. 408 ; Bradley v. United States, 98 U. S. 104. Thus in the case of Doe v. Burt, I T. R. 703, where a lease had been made by the plaintiff to the defendant of part of a messuage, together with a piece of ground thereunto adjoining, which piece of ground was used as a yard, and beneath the yard was a cellar, occupied by a third party under a lease previously granted to him by the plaintiff, and the occupant of the cellar continued to reside in it, and to pay rent to the- plaintiff for three or four years after the latter had demised the yard to the defendant, but his lease having expired, and he having quitted the cellar, the defendant took possession of it, contending that the cellar had passed to Jiim by the demise of the yard, the court held that parol evidence J Robinson v. Gt. West. Ry. Co. 35 L. ' Sutton v. Bowker, 5 Gray, 416. J. (N. S.) C. P. 123. MERCANTILE CONTRACTS. 187 of the surrounding circumstances was admissible to show that it did not pass." 16. In Bedard v. Bonville, 57 Wis. 270, by a written contract plaintiffs agreed to finish two stores in a certain manner, " and also to finish the front part of the basement, with the stairway- going up to the second story, and also the outside two cornices," etc. In an action to recover for extra work done on the inside of the front basement wall, it was held that the language of the con- tract was so vague and ambiguous that extrinsic evidence was admissible to aid in its construction, and that upon such evidence it should have been submitted to the jury to determine whether the work in question was covered ' by the contract or not. The court said : " Unaided by extrinsic evidence this court is of the opinion that ' the front of the basement ' means not merely the external front, but both sides of the front basement wall. Such evidence was held admissible by this court in the following cases: Ganson v. Madigan, 15 Wis. 144; Prentiss v. Brewer, 17 id. 636; Rockwell v. Ins. Co., 21 id. 548; Lyman v. Babcock, 40 id. 508; Monitor Iron Works v. Ketchum, 44 id. 126-131. In the last case it was held that works 'connected with steam on,' in a con- tract for furnishing and setting up a steam-engine, were or might be words of technical meaning, and that an expert might testify as to their meaning as used in such contract. So the language in the contract in this case is certainly ambiguous, and may to a certain extent be considered words of technical meaning, and are therefore subject to explanation by extrinsic evidence of all the circumstances attending the making of the contract, and also by the evidence of experts familiar with contracts of that nature. Whart. Ev,. (2d ed.) §972; Collyer v. Collins, 17 Abb. Pr. 467." 17. A memorandum for the sale of lumber was as follows: " Sold to B. & K. * * * 100 M i-inch shipping culls, to be shipped before July ist, at $11.25, they to pay the B. C. railway charges; and 100 M i-inch shipping culls, to be shipped after August 25th and before October i, at $11 ; and 100 M i6|-inch and up wide coffin boards, sound, common, seasoned eight months. Terms, two months." It was held that evidence was competent to show the price of the last lot of lumber, and the time for delivery, and explain the term " two months." ' 18. In Peabody v. Bement, 79 Mich. 47, the contract was to insert advertisements in a catalogue, the advertisers to furnish ' Hurd V. Bovee, 26 N. Y. St. Rep. 834; 45 id. 934. 188 PAROL EVIDENCE. electrotypes, but no time therefor was fixed. Evidence was allowed that the publisher was to furnish certain information to the advertiser and that he was to publish no other advertisement of the same kind, as bearing on the question of time. 19. Parol evidence is competent to identify the property in a chattel mortgage. Galen v. Brown, 22 N. Y. 37. 20. C. did business at Buffalo, and did his banking business with plaintiff. The plaintiff demanding more security for loans, he gave him a letter of credit from his father-in-law, residii;g in Canada, as follows : " Please discount for Mr. Cummer to the extent of $4,000. He will give you customers' paper as collat- eral. You can also consider me responsible to the bank for the same." In an action thereon, held, that evidence of the circum- stances was competent to show that it was intended as a contin- uing guaranty, not ceasing with the discount and payment of the stated sum, but continuing, in spite of a change in C.'s business, until terminated by a notice from the defendant.-" In Hefifield v. Meadows, L. R. 4 C. P. 595, the court said: "It is proper to ascertain that (the subject matter), for the purpose of seeing what the parties were dealing about, not for the pur- pose of altering the terms of the guaranty by word of mouth passing at the time, but as part of the conduct of the parties, in order to determine what was the scope and object of the intended guaranty. Having done that, it will be proper to turn to the language of the guaranty, to see if that language is capable of being construed so as to carry into effect that which appears to have been the real intention of both parties." So in Coquillard V. Hovey, 23 Neb. 622, S. C. 8 Am. St. Rep. 134, evidence was allowed to explain whether " notes taken " was intendJO to extend to notes taken afterward. 21. In Roots V. Snelling, 48 L. T. Rep. (N. S.) 216, S. signed a written contract with R. to purchase a brick-field for ;£' 1 7,000, to be paid as follows: ;£'i6,ooo in cash, and £\,cao in freehold equities, to pay on the ;:Ci,ooo 12 per cent, per annum. Before signing S. had made out and given to R. a list of freehold houses, in which he was entitled to the equity of redemption, but this document was not referred to in the contract. Held, that such list was admissible by way of parol evidence to explain the mean- • White's Bank v. Myles, 73 N. Y. 335 ; Hotchkiss v. Barnes, 34 Conn. 27. S. C. 2g Am. Rep. 157. Columbus S. P. Co. v. Ganser, 58 Mich. Gardner v. Watson, 76 Tex. 25. 385 I S. C. S5 Am. Rep. 697. MERCANTILE CONTRACTS. 189 ing of freehold equities in the contract. In Griswold v. Sawyer, 125 N. Y. 411, upon parol proof of the circumstances it was held that " legal representatives," in a life insurance policy, meant the heirs and next of kin of the assured. Where a contract was to pay " ruling market rates" for goods, and there was one rate for the importers and another for the jobbers, parol evidence was admitted to determine which was meant.' And so to determine the meaning of " cold storage." ^ 22. In Agawam Bank v. Strever, 18 N. Y. 502, parol evidence was admitted to explain the word " incurred," in a memorandum stating that a note was " left as collateral security for all liabilities incurred," etc., by showing that the signers were at the time under no liability to the bank. Selden, J., observed: "Now it is true that upon a strict grammatical construction of these terms, they would be held to embrace only liabilities which had been already incurred. The word ' incurred ' being in the past tense, when used without other words to modify its meaning, would in strictness relate exclusively to past transactions. Were this memo- randum therefore to be construed by itself, without the aid of any extrinsic fact or circumstance whatever, I am inclined to think the interpretation contended for by the appellant's counsel the one which should be adopted ; especially as against the defend- ants, who are mere sureties. But its meaning can hardly be regarded as so entirely clear and unequivocal as to exclude all aid from the circumstances surrounding the parties at the time of entering into the contract. It is not usual to pay a very nice and critical regard to grammatical rules in the use of language in the ordinary transactions of business; and no interpretation which depends upon a very rigid application of those rules can well be considered as so satisfactory as not to admit of modification by any species of extrinsic proof. It was proper therefore, upon the trial, to resort to evidence of the attending circumstances to assist in ascertaining the meaning and intention of the parties. The proof adduced for that purpose, that at the time the note was left with the bank, neither Isaac S. Doane, nor Doane & Hoysradt were under any liabilities to the bank, was of the highest ' Manchester Paper Co. v. Moore, 104 Pa., etc., Nav. Co. v. Dandridge, 8 G. N. y. 680. & J. 248 ; S. C. 29 Am. Dec. 543. ' Behrman v. Linde, 47 Hun, 530. Lancaster Mills v. Merchants' Co., 89 Sfee also Dexter v. Oblander, 89 Ala. Tenn. i ; S. C. 24 Am. St. Rep. 586. 262. Berginv. Williams, 138 Mass. 544. 190 PAROL EVIDENCE, importance, and left no doubt as to the true construction of the terms of the memorandum." Railroad tickets : In N. Y., etc., R. Co. v. Winter's Admrs., 12 Sup. Ct. Rep. 356, there was nothing on the face of the ticket to show that a stop-over check was required of the passenger as a condition precedent to' his resuming his journey from Olean to Salamanca, after stopping off at the former place. It was shown by the evidence that Olean was a station at which stop-over priv- ileges were allowed. " Under such circumstances it was entirely proper for the passenger to make inquiries of the ticket agen{ and to rely upon what the latter told him with respect to his stopping over at Olean. * * * The reason of such rule is to be found in the principle that when a party does all that he is required to do under the terms of a contract into which he has entdred, and is only prevented from reaping the benefit of such contract by the fault or wrongful act of the other party to it, the law gives him a remedy against the other party; for such breach of contract." With regard to the admission of parol evidence to vary the contract between the parties constituted by the ticket and the regulation of the company, the language of the court is as follows : " While it may be admitted as a general rule that the contract between the passenger and the railroad company is made up of the ticket which he purchased and the rules and regula- tions of the road, yet it does not follow that parol evidence or what was said between the passenger and the ticket-seller, from whom he purchased his ticket, at the time of such purchase, is admissible as going to make up the contract of carriage, and forming part of it." The circumstances provable are only such as were known to both the parties.* Sec. 54. Conyersatious and acts of parties. The conversations and acts of the parties to a contract, at and about the time of the making of the contract, as well as subsequent to the making of the contract, are ad- missible in evidence to show what sense the parties attached to any term or phrase used in the contract, which is in itself susceptible of more than one interpre- tation, or which, viewed in the light of the evidence ' Brady v. Cassidy, 104 N. V. 155. MERCANTILE CONTRACTS. 191 explanatory of the subject-matter, the relations of the parties, and the circumstances, may reasonably be suscep- tible of more than one interpretation. Illustrations : I. In Birch v. Depeyster, i Starkie, 167, A. D. 1816, an action for ship freight, earned inTespect of goods carried in the cabin, the defendant was to receive a stipulated sum in lieu o{ privilege and primage ; and the question being whether the contract prohibited the captain from using the cabin for carrying goods on his own account, evidence of a conversation between the parties before the agreement was entered into, in Vhich the plaintiff stated that the defendant was to have the use of the cabin for himself, was admitted to explain the terms in question. 2. In Wait v. Fairbanks, Brayton (Vt.) T], A. D. 1817, parol evidence of the agreement and understanding of the parties was admitted to explain the term " good custom cowhide." 3. In Gray v. Harper, i Story, 574, A. D. 1841, parol evidence of the contemporaneous conversations of the parties was admitted to explain the term " cost." 4. So in,Walrath v. Thompson, 4 Hill, 200, A. D. 1843, con- versations were admitted to explain " your account " in a guaranty,, and to show that it applied not to an existing account, but tO' one subsequently contracted on the faith of the letter. 5. In Hart v. Hammett, 18 Vt. 127, A. D. 1846, an action on a contract for the sale of " winter strained lamp oil," it having- been shown that this phrase signified sometimes sperm oil, and sometimes whale oil, the defendant was allowed tp prove that he informed the plaintiff, at the time of the execution of the con- , tract, that it was not for sperm oil. The court say : " In many cases an inference of intention is drawn from circumstances. If the intention of the parties is expressly declared, this should be regarded as far more satisfactory than to have the intention inferred ; and evidence to this point cannot but be material and relevant to the inquiry." 6,< In Norton v. Woodruff, 2 N. Y. 153, A. D. 1849, the court, holding that the terms in question were unmistakable, decided that neither the subsequent declaration nor conduct of the defendant were admissible, but concede that evidence of this character may be resorted to for the purpose of proving the sense in which particular terms were used by the parties. 192 I'AKOL' EVIDENCE. 7. In Almgren v. Dutilh, 5 N. Y. 28, A. D. 1851, an action for ship freight, proof of a conversation between the captain and defendants when in negotiation for the charter, was admitted to show that " necessary" did not mean " indispensably necessary," Gardener, J., remarking: "It did not go to vary the written agreement, but to prove by the acts of the parties the space which they esteemed necessary for the accommodation of the crew." 8. In Barrett v. Stow, 15 111. 423, A. D. 1854, conversations of parties were admitted to show that " building" included an ell. 9. In Macdonald v. Longbottom, 28 L. J. N. S. Q. B. 293, A. D. 1859, ^ prior conversation of the parties was allowed to be proved to show that "your wool " embraced some that the plain- tiff had contracted to buy of others, as well as his own clip. Ch. J. Campbell says: " Is there any difficulty in admitting what passed at that conversation ? I think that there is none. It is no part of the contract, and is not adding to or varying a written contract, but it is evidence which enables us to say what the contract referred to." 10. In Mumford v. Gething, 7 C. B. N. S. 305, A. D. 1859, *" order to show that a contract was not void in restraint of trade>. evidence of a prior conversation of the parties was admitted to prove that " ground " was the " midland district." 11. In Ganson v. Madigan, 15 Wis. 144, A. D. 1862, contem- poraneous declarations of the plaintiff's agent to the defendant were allowed to be shown to explain the meaning of the word " team," as to whether a two-horse or a four-horse team. 12. In Blair v. Corby, 37 Mo. 313, A. D. 1866, where the inquiry was as to the meaning of " hard pan," evidence of the express agreement that the contract was not to apply to indura- ted earth was held admissible. 13. In Thorington v. Smith, 8 Wall, i, A. D. 1868, to show that " dollars " meant Confederate dollars, proof of the contem- poraneous agreement and understanding of the parties was adjudged proper. 14. In Stoops v. Smith, 100 Mass. 63, A. D. 1868, an action of contract against a trader in sewing machines, upon an agreement to pay for advertising charts, parol evidence of the plaintiff's decla- rations at the time of its execution was held admissible to show that the charts were to be of cloth and posted in a certain way. The court say : " The terms of the negotiation itself, and state- ments therein made may be resorted to for this purpose. * * * MERCANTILE CONTRACTS. 193 If the previous negotiations make it manifest in what sense they used and understood those terms, they furnish the best definition to be applied in the interpretation of the contract itself." 15. In Swett V. Shumway, 102 Mass. 365, A. D. 1869, an action oh a contract for the manufacture and delivery of horn chains, the plaintiff was allowed to prove that the defendant was informed and knew, at the time of its execution, that the chains manufactured thereunder were to be partly made of hoof, horn being a general designation in the trade for chains made of either indiscriminately. The court said : " Parol testimony of that which was in the minds of the parties, and to which their atten- tion was directed at the time, may be given. It may be shown that a sample to which the terms of the contract are applicable, was exhibited or referred to in the negotiation, and other state- ments of the parties then made may be resorted to. The sense in which the parties understood and used the terms used in the writing is thus best ascertained." 16. In Goodrich v. Stevens, 5 Lans. 230, A. D. 1871, the ' question was as to the meaning of the words " his crop of flax." In order to show that it was designed to embrace flax purchased by the vendor from' others, as well as what he himself raised, it was held competent to adduce parol evidence of a conversation between the parties several weeks before the contract was drawn up, and also of like conversations en the day of its execution, just before and just after it was executed.' 17. The case of Field v. Munson, 47 N. Y. 221, A. D. 1872, although rather inadequately reported, seems to be an authority to the same effect. In that case there appears to have been a contract evidenced by certain letters. The contract " was not entirely intelligible," observe the court, " and the situation and relation of the parties toward each other, and the circumstances attending the negotiation and sale of the starch were competent. Again, the circumstances proved, including the interview of the plaintiffs with Stevens on the subject, and preliminary to the sale, were parts of the res gestce. The letters of the defendant, relating to the transaction, were competent against him as declarations or admissions." 18. Where cloves were sold by sample, and there was a bill of sale of " two casks of cloves," evidence was allowed to show ' But see Norris v. Clark, 33 Minn. 476; contra, as to " my brick." 194 PAROL EVIDENCE. the kind of cloves bargained for.' So in a case of sale of ' white willow saplings."^ 19. In an action on a written contract for stone at a specified price " per perch," the contract not specifying the number of cubic feet in a perch, and-the evidence on that point being con- flicting, it was held that parol evidence of the oral negotiations and agreement of the parties is admissible to explain the ambig- uity.^ Where a building contract provided that " the entire walls of the building, inside aqd outside, are to be painted," conversa- tions of the parties were held admissible to show whether it was the intention to have the plaster painted.^ Where it was agreed that machines were to be delivered " as soon as possible," evidence was admitted that the vendor represented that he had them in stock.' Where a contract was to furnish " all materials and labor for plumbing," oral evidence of the agreement that this should not include kitchen ranges was allowed.^ Contrary authority : On the other hand, in Dent v. N. A. Steamship Co., 49 N. Y. 395, Rapallo, J., remarks in relation to evidence offered to explain an ambiguous contract : " Facts existing at the time of making the contract may therefore be properly considered for the purpbse of interpreting this language \ but no evidence of the language employed by the parties in makifig the contract can be resorted to, except that which is furnished by the writing itself. The referee therefore properly excluded evidence of verbal agreements preceding the writing of the letter." The case does not disclose exactly to what this language applies. If only to previous agreements between the parties it may be sound ; but if to negotiations relating to the agreement in question, the language italicized is in opposition to a long and almost unbroken line of adjudications, including several in the same court. In view of this line of decisions the Court of Appeals, in the Dent case, can scarcely be supposed to decide quite what their language strictly considered would indi cate, especially as none of the foregoing cases were alluded to, nor indeed was any authority cited except a section of Greenleaf's Evidence. Indeed, considering the matter upon principle, there can be no doubt of the correctness of these decisions. If extra- ' Bradford v. Manly, 13 Mass. 139. * Beason v. Kurz, 66 Wis. 448. ' Pike V. Fay, loi Mass. 134. ' Tufts v. Greenewald, 66 Miss. 360. ' Quarry Company v. Clements, 38 Ohio ' Cassidy v. Fontham, 38 N. Y. St. Rep. St. 587 ; 43 Am. Rep. 442. I77- MERCANTILE CONTRACTS. 195 neous /acis may be considered in explanation of an ambiguity, in order to show the court what the parties had in their minds, the still more certain index to their meaning, namely, their oral language, should also be considered for the same purpose. The object of such evidence is elucidation of the meaning of parties, not contradiction of their purpose. The evidence is received, as C. J. Gibbs says in Birch v. Depeyster, "just as you would look into a dictionary in order to ascertain the meaning of a word," and as Erie, J., says in Macdonald v. Longbottom, " it would not vary the contract nor would it add to it ; it is not only the mean- ing of the plaintiff, but also of the defendant." Several text writers however disapprove the admission of con- versations. Thus Taylor (Ev. sec. 1193) says of Birch v. Depeyster and Gray v. Harper, " the principle of these cases is not very clear, and no great weight should in prudence be attached to them ; and Powell (Ev. 456) says that in all cases where explanatory extrinsic evidence has been received " it has been received not in the form of declarations of intentions by parties, but in the form of collateral and surrounding facts," etc. The career of adjudication however has far outstripped the limitation. Sec. 55. Practical interpretation. Where the language of the contract is indefinite or ambiguous, the practical interpretation of the parties themselves, by their acts under it, is entitled to great if not controlling influence.^ Illustrations : i. In Bement v. Claybrook, — Ind. — ; 31 N. E. Rep. 556, the contract was for the sale of " all the large cottonwood and sycamore trees on the Kentucky side of Diamond Island." The defendant contended that " there is a patent ambiguity, and insisted that the words ' large trees ' furnish no definite standard of comparison by which to identify what was sold, and that the ' Chicago V. Sheldon, 9 Wall 50. trinsic evidence can be more valu- Vinton v. Baldwin, 95 Ind. 433. able"). Ketcham v. Brazil, etc. Co. 88 Ind. 515 Lovejoy v. Lovett, 124 Mass. 270 (to (including conversations). explain ambiguous deed). Vermont St. M. E. Church V. Brose, 104 Gray v. Clark, 11 Vt. 583 (to explain. III. 206 (to explain "stone for front "including"). and footing being furnished, no ex- Wilson v. Randall, 67 N. Y. 338. 196 PAROL EVIDENCE. contract is so indefinite And uncertain as to the subject-matter upon which it was to operate that it cannot be the basis of an action for damages, but the court observed : " Where the parties reduced their agreement to writing and signed it, and proceeded to act under it, they indicated their own belief that they had made a binding contract, and that the instrument executed by them was not an idle form of words. If it be possible, under the mode of its presentation to the court, the contract must be con- strued so as to render it operative and not void. If a lawful intention of the parties can be drawn from all the language employed in the written instrument, examined with reference to the subject and the surroundings as shown by the pleading, with- out contradicting or varying the written words by oral language, that intention should be effectuated. The intention of the^parties ascertained from extrinsic facts, for the purpose of upholding an uncertain written contract, must be an intention compatible with a fair and reasonable interpretation of the written language. The parties, and not the court, must make the contract, and they must abide by the written terms employed. If their intention cannot" be gathered from the written language thus explained by extrinsic facts, the contract will be held void for uncertainty ; but the effort of the court should be to ascertain the intention, if possible, by a reasonable and just construction. All this is elementary, and authorities need not be cited. Where the language of a written contract is indefinite, ambiguous, or of doubtful construction, the practical interpretation given it by the parties in acting pursuant to it is entitled to great, if not controlling, influence in arriving at the true intention. Chicago v. Sheldon, 9 Wall. 50 ; Reissner v. Oxley, 80 Ind. 580 ; Lyles v. Lescher, 108 Ind. 382, Gaylord v. City of Lafayette, 115 Ind. 423 ; Railroad Co. v. Reynolds, 118 Ind. 170. The written contract set out in the complaint indicates a put'pose to sell all the cottonwood and sycamore trees on the Kentucky side of Diamond Island, large enough to be made into logs, which could be taken at the bank, and there be measured as logs. The complaint shows the location of Diamond Isla^ld, and that there was a timbered strip of a certain width on the side indicated in the contract. It is shown that all the large cotton- wood and sycamore trees in this strip were sold by the contract, and at the time of the making of the contract there were standing in the location defined in the contract large cottonwood and syca- more trees which, when cut into logs, would equal $1,000,000 feet. MERCANTILE CONTRACTS. 197 The contract does not state the size of the trees sold exactly, or by mentioning a maximum, minimum, or average size ; but it is alleged in the complaint, that in pursuance of the contract, the purchaser cut and measured on the bank of the river $300,000 feet of logs for which he paid the seller the price agreed upon. The trees from which these logs were made must be taken to have been trees of the kind intended by the parties in their written con- tract. They so treated them themselves." 2. In Frazier v. Myer, — Ind. ; 31 N. E. Rep. 536, where there was a grant of a right of way " not to be fenced," evidence was admitted that gates had always been maintained across it by the parties. 3. In Janesville Cotton Mills v. Ford, Wis. , 52 N. W. Rep. 764, parol evidence was allowed to explain the meaning, in conveyances of a mill privilege, of the phrase " square inch of water," including evidence of the practical interpretation of the parties. The court observed : "It is apparent that the term does not, in the ordinary and usual sense of the words used, convey to the mind any idea of volume. In order to determine what it means, it must receive a construction, and the question is, what is the construction or meaning which must be given to it ? On bejialf of respondents it is claimed, and the circuit court seems to have followed that view, that the term ' square inch of water ' had a definite technical meaning among water engineers and practical mill men from a time anterior to the making of the first convey- ance, and that such meaning was the one found by the court, namely, a stream of water with a cross-section area of one square inch, moving with the velocity due to the given head. On the other hand, it is claimed by appellants that the term had no such definite technical meaning at any time, certainly not in the early days of the water power in question, and that the meaning of the term as here used must be sought for and found by considering the circumstances and facts surrounding the various grants and the evidence of the parties as to the meaning intended by the term, and that in the light of such facts and evidence of intention it must be held that the term means the amount of water which will be discharged through an aperture in a flume of the givep number of square inches, the center of which aperture is at the given distance below the surface of the water in the flume. For convenience we will call the first the 'theoretical inch' ; the sec- ond, the ' practical inch '. It appears from the testimony of the 198 PAROL EVIDENCE. experts that there is a considerable difference between the theo- retical and the practical inch. The theoretical inch is certain and unvarying in amount ; the practical inch varies in amount accord- ing to the construction of the aperture. * * * It is a matter of considerable importance, therefore, which of these meanings is to be applied to the term ' square inch,' as used in the deeds under consideration. It needs no authority to show that if the term had a fixed and definite meaning among hydraulic engineers and mill men at the time it was used, such meaning would pre- vail, notwithstanding the fact that people ordinarily did not know of such meaning, or even that the parties to the deeds themselves did not know of it. Parties cannot use technical terms with a fixed meaning, and then disclaim such meaning. It is equally clear to our minds that when such alleged technical or trade meaning is an arbitrary one, and not a meaning which the word or words would naturally import, it must clearly appear that the acquired or technical meaning was not the subject of dispute or doubt ; that it was well settled and understood, at least among members of the profession or trade which is supposed to use the term in such technical sense." After examining the evi- dence of experts and of the circumstances, the court continued : " Were we left with the testimony alone on the subject, appellants' contention would indeed be strong. There is however other testimony in the case, which seems to us of greater significance, in the interpretation placed by all the parties then interested upon the terms of their conveyances, and the construction so adopted, while technical and arbitrary, possessed the merit of being definite and certain, capable at all tihies of being ascertained with mathe- matical accuracy. It is well settled that the practical construc- tion placed by the parties in interest upon doubttul or ambiguous terms in a contract will exercise great and sometimes controlling influence in determining the construction, and such rule is founded upon manifestly just principles. District of Columbia v. Gallaher, 124 U. S. 505; Topliff v. Topliff, 122 U. S. 121 ; Pate v. French, 122 Ind. 10; Nilson V. Morse, 52 Wis. 240; Hosmer v. McDonald, 80 Wis. 54. While this rule applies with greatest force to execu- tory contracts,, it is by no means confined to that class, and in this case there is furthermore an element partaking of an executory nature in the conveyances, for the water sold is continually being delivered. We have concluded in this case that the construction which the owners of the power for years placed upon the terms MERCANTILE CONTRACTS. 199 of their grants, it appearing that such construction is reasonable and definite, should and must prevail. We adopt the construc- tion which the parties have adopted, the construction which admits of no doubt as to the amount of water called for, which can always be defined and ascertained with mathematical cer- tainty, and' which seems to do justice to all parties in interest, namely, the construction that a 'square inch of water,' as used in the deeds in this case, means what we have termed the ' theoret- ical square inch.' " Limitation : But such evidence is inadmissible if the language is clear and definite.' Illustrations: i. Thus in Norton v. Woodruff, 2 N. Y. 153, the subsequent declarations and conduct of the parties were held inadmissible to show that the contract of a miller to "take" wheat and " give " flour in return, imported a bailment and not a sale. So in Morss v. Salisbury, 48 N. Y. 637, where there was a contract in duplicate, unsealed, one part conveying " all the land and timber, except the hard wood," and the other ", all the bark and timber," etc., it was held that there was no intention to con- vey the land, and that evidence that the price paid was the full value of the land, bark and timber, except the hard wood, was inadmissible. In Hill v. Priestly, 52 N. Y. 635, parol evidence was held inadmissible to show that an absolute deed in fee had been treated by the parties and their grantors as granting but an easement. The court said : " It is only where the language of a contract is indefinite that the acts of the parties in carrying it out are received as a practical construction of it; and the evidence tended to show an exception, which, if established, rendered it void as repugnant to the grant." 2. But in Barker v. Railr. Co., 27 Vt. ^66, evidence of the acts of the parties was admitted although the contract contained no ambiguous or equivocal terms. The court distinguished be- tween this class of evidence and evidence of contemporaneous conversations, admitting the former " to show how the parties understood their contract, and as a practical construction of it." Sec. 56. Limitation of general rule. Evidence under this rule may never be admitted if it is in direct contradiction of the intrinsic meaning of the ' Hill V. Priestly, 52 N. Y. 635. Albright v. Voorhies, 36 Hun, 437. Morss V. Salisbury, 48 N. Y. 637. 200 PAROL EVIDENCE. language of the contract, or its meaning as settled by usage and custom. Illustrations: i. This important distinction is well and suffi- ciently settled by The Delaware, 14 Wall. 579, where it was held that a bill of lading in the ordinary form, imports an obligation to stow the goods under deck, and that evidence is incompetent to show an oral agreement to stow on deck. And in Gilbert v. Moline Plow Co., 119 U. S. 491, it was very curtly held that parol evidence is not admissible to vary a written guaranty, in these words : " We will satisfy all orders G. gives this spring, such as plows and cultivators." 2. In Palmer v. Albee, 50 Iowa, 429, parol evidence to explain " twenty acres " of land, in a subscription contract, was rejected. Beck, J., dissenting. And so of " the securities for the deferred payments," in a contract to furnish land.' The court said this would not be to apply the terms nor identify the subject- matter, but to supply terms. In Norris v. Clark, 33 Minn. 476, the contract conferred the right " to have the sale of my brick in in Fergus Falls during the season of 1883." The court held that this meant " the exclusive right to sell," and that " the oral evi- dence offered to show such to be the meaning was properly excluded as unnecessary, and " because where the subject-matter is ascertained, we must determine as best we may what the par- ties intended in regard to it from the language they have selected to express that intention." ^ 3. Where there was a contract to deliver two million brick by two named vessels, beginning June ist, "vessels to run stead- ily thereafter," parol evidence was held inadmissible to show a contemporaneous oral agreement not to require more than five hundred thousand a month.' "The contract made the carrying capacity of the vessels, steadily employed, * * * the measure of the delivery." Where a contract for carriage of goods by canal boat described the goods, place of shipment and of desti- ' George v. Conhaim, 38 Minn, 338. Burr v. Broadway Ins. Co., 16 N. Y. ' See Morris' Appeal, 88 Pa. St. 368. 267. Field V. Munson, 47 N. Y. 22i. Reynolds v. Commerce Fire Ins. Co., Brawley v. U. S., 96 U. S. 168. 47 N. Y. 597. Reed v. Ins. Co., 95 U. S. 23. Springsteen v. Samson, 32 N. Y. 703. Hedges v. Bowen, 83 111. 162. Veazie v. Forsaith, 76 Me. 172. County of Des Moines v. Hinkley, 62 ' Corse v. Peck, 102 N. Y. 513. Iowa, 637. MERCANTILE CONTRACTS. ■ 201 nation, mode of carriage, name of consignee, price to be paid, and amount to be advanced to the captain, " to be delivered in good order," it was held incompetent to add a parol agreement by defendant to unload the boat at his own cost, except the cost of .shoveling the cargo into other vessels.' This was put on the ground of contradiction, as is evident from the illustrations of Learned, P. J. ' Doty V. Thomson, 39 Hun, 243. 202 PAROL EVIDENCE. CHAPTER XIV. Usage. Sec. 57. Admissibility of usage to explain terms. 58. Admissibility of usage to annex incidents. 59. Where usage not provable. Sec. 57. Usage to explain terms. Extrinsic evidence is admissible in the construction of a njercantile contract, to show that phrases or terms used in the contract have acquired, by the custom of the locality, or by the usage of trade, a peculiar signification, not attaching to them in their ordinary use, and this whether the phrases or terms are in themselves appar- ently ambiguous or not.^ Unambiguous words — doctrine of Starkie and Stephen : It has oeen laid down by two distinguished text-writers that usage is incompetent to explain unambiguous words. Starkie says (Ev. p. 706): " Merchants are not pr9hibited from annexing what weight and value they please to words and tokens of their own peculiar carriage, as may best suit their own purposes, but they ought not to be permitted to alter and corrupt the sterling language of the realm. If they are plain and ordinary terms and expressions, to which an unequivocal meaning belongs, which is intelligible to all, then it seems that according to the great principle, so fre- quently adverted to, that plain sense and meaning ought not to be altered by evidence of a mercantile understanding and usage. It is clear indeed that if a contrary practice were to prevail, and be carried to its full extent, the effect would nearly be to render it impossible to make a special contract in mercantile affairs, and to compel all persons, under all circumstances, to conform to the usages of trade ; the written contract would become a dead letter ; the question would not be, what is the actual contract, but what ' Wigram Ext. Ev. 57; 2 Pars. Cont. 48, 54- USAGE. 20;> is the usage ; and the very same terms would denote different contracts as often as mercantile fashions varied." And so Stephen { Dig. Ev. art. 91, [2] ) : " But evidence may not be given to show that common words, the meaning of which is plain, and which do not appear from the context to have been used in a peculiar sense, were in fact so used." Tke earlier cases: A few of the earlier cases were in this line. Thus in Yates v. Pym, 6 Taunt. 446, evidence was rejected to show the meaning of " prime unsinged bacon," and in Blackett v. Royal Ex. Assur. Co., 2 Cr. & J. 244, on an insurance of a ship, her tackle, apparel, boats, etc., evidence of usage that under- writers never pay for loss of boats strung upon the quarter, outside the ship, was excluded. These cases are irreconcilable with many later cases, and the latter case is criticised by Cock- burn, C. J., in Myers v. Sari, 3 Ell. & Ell. 316, who says it " goes to the extreme verge of the law," and that -evidence was admis- sible " to show that by general understanding among insurers ' boats ' did not mean all boats." The later cases : But this limitation is fully disapproved by the almost uniform course of modern adjudication. Thus, Black- burn, J. : "I do not think that it is necessary, in order to render such evidence admissible, that there should be any ambiguity on the face of the phrase which was to be construed." ' And Folger, J.: " The meaning of words may be controlled and varied by usage, even when they are words of numbers, length, or space, usually the most definite in language."^ And Coleridge, J. : " Evidence will not be excluded because the words are in their ordinary meaning unambiguous ; for the principle of admission is that words perfectly unambiguous in their ordinary meaning, are used by the contractors in a different sense from that."^ And Addison, J.: "It is perfectly competent to you to qfialify or alter by parol evidence the meaning of the words which appar- ently form the written contract, and to insert the true words which the parties intended to use. This is not to alter the contract, but to show what the contract is."^ Particular words explained by usage: Custom or usage has been proved to show the meaning of the following words : •' Myers v. Sari, 3 E. & E. 306. ' Smith v. Wilson, 3 B. & Ad. 728. = Walls V. Bailey, 49 N. Y. 464. ■• Grant v. Maddox, 15 M. & W. 737. 204 PAROL EVIDENCE. "inhabitant"*/ "level," as understood by miners;* "weeks";* " months" ; * " days" ; = " fur " ; « " corn" ; ' " pig iron" ; ' " freight" ; * "salt'';" "barrels";" "roots," as used in insurance policies;'^ "outfits";'^ "day's work ";'*" wholesale factory price "; '^ " after proof and adjustment thereof";^'' " cargo ";^'^ "sea-letter";^* "inevitable dangers of the river ";^' " C. O. D." in a contract of carriage by express ; ^° " freight measurement" ; ^' " Michaelmas" ; ''^ " on margin," in a stock contract \^ so of " port risk" ;^^ of " cur- rent funds'';^ "harbor of NewYork";^^ " British weight," in a charter party ;^' " spitting of blood," in an application for insur- ance ;^'" cuts" ;^ that "screened coal "does not include nut coal ;^' "weekly account " ;^' " keeping a watch "; ^^ " fire by lightning "; ** "filled in with brick ;"^ that "First Nat. La Fayette, Ind.," in a note means a bank. ^ Further illustrations : i. In Chaurand v. Angerstein, Peake, 43, Lord Kenyon admitted proof of usage among commercial men to show that to " sail in the month of October," in an insur- ance policy, meant not until the 25th. In Brown v. Byrne, 77 E. C. L. 702, in regard to the phrase, in a bill of ladi-ng, " paying freight for said goods five-eighths of a penny sterling per pound, with five per cent, primage and average accustomed," proof of 'Rex. V. Mashiter, 6 Ad. & Ell. 153. " purley v. Wood, I Esp. 198. ' Clayton v. Gregson, 5 Ad. & Ell. 302. '^ Hatch v. Douglas, 48 Conn. 116 ; S. C. ' Grant v. Maddox, 15 M. & W. 737. 40 Am. Rep. 154. * Jolly V. Young, i Esp. 186. " Nelson v. Sun Mutual Ins. Co. 71 N. ' Cochran v. Retberg, 3 Esp. 121. Y. 455. • Astor V. Union Ins. Co. 7 Cow. 202. " Galena Ins. Co. v. Kupfer, 28 111. 332; S. ' Mason v. Skurray, Park Ins, 245. C. 81 Am. Dec. 284. ' Mackenzie v. Dunlop, 8 Macq. S. C. 26 " Nelson v. Ins. Co. 71 N. Y. 453. » Peisch V. Dickson, i Mason, 11. " Goddard v. Bulow, i Nott & McCo^d, ■° Journu V. Bourdieu, Park Ins. 245. 45 ; S. C. g Am. Dec. 663. " Miller v. Stevens, 100 Mass. 518 ; S. C. '* Singleton v. St. Louis Ins. Co. 66 Mo. I Am. Rep. 139. 63 ; S. C. 27 Am. Rep. 321. " Coit V. Com. Ins. Co. 7 Johns. 385. 29 Houghton v. Ins. Co. 131 Mass. 300. " Macy V. Whaling Co. 9 Mete. 354. ^ Mercer, etc. Co. v. McKee's Admr. 77 " Hinton v. Locke, 5 Hill, 437. Pa. St. 170. 1' Avery v. Stewart, 2 Conn. 69 ; S. C. 7 "' Myers v. Sari, 30 L. J. (N. S.) Q. B. 9. Am. Dec. 240. 3» Crocker v. People's Mut. Ins. Co. 8 " AUegre v. Ins. Co. 6 H. & J. 408. Cush. 79. " AUegre v. Ins. Co: 2 G. & J. 137. ^3 Babcock v. Mont. County M. Fire Ins. '' Sleght V. Rhinelander, i Johns. 192. Co., 6 Barb. 637 ; 4 N. Y. 326. " Gordon v. Little, 8 S. & R. 533. ^ Fowler v. /Etna Fire Ins. Co., 7 Wend. '" CoUender v. Dinsmore. 55 N. Y. 200 ; 270. S. C. 14 Am. Rep. 224. '» Lane v. Union Nat. Bank. — Ind. 29 "' Gibbon v. Young, 8 Taunt. 254. N. E. Rep. 613. USAGE. 205 a custom to allow a deduction of three months interest on the freight was approved. Coleridge, J. said : " Neither in the con- struction of a contract among merchants, tradesmen or others, will the evidence be excluded because the words are in the ordi- nary meaning unambiguous; for the principle of admission is, that words perfectly ambiguous in their ordinary meaning are used by the contractors in a different sense from that." (The ■dispute was over the sum oi £i i6s. 3d.) 2. In Cochran v. Retberg, 3 Esp. N. P. 121 (1800), an action for demurrage, parol evidence was received by Lord Eldon, to show that the phrase " to be discharged in fourteen days," in a bill of lading, meant working days, and did not include Sundays nor custom-house holidays. 3. In Coit v. Commercial Insurance Company, 7 Johns. 385 (iSii), parol evidence was held admissible, to show that sarsa- parilla was not a " root " within the meaning of a policy of insurance. 4. Moxon v. Atkins, 3 Camp. 200 (1812), was an action on a policy of insurance on goods on ship-board, " at and from the ship's lading port or ports in Amelia Island to London.'' Amelia Island lies near the mouth of the river St. Mary's, and has no port. Further up is Tigre Island, where ships generally took on cargo. Having loaded at Tigre Island, they drop down to Amelia Island, where the Spanish governor lived, and there paid duties and obtained clearances. This course was pursued by the ship in question. It was contended that the policy did not attach, but Lord Ellenborough held, that it was a question for the jury, "whether there had been a loading at Amelia Island, within the meaning of the parties when the policy was effected. Strictly and locally there has been no loading at Amelia Island. But it is possible that in mercantile contracts, Amelia Island may de- nominate a region in which Tigre Island is comprehended. * * * * The question here will be, whether, upon the evidence, this cargo can be said to have been loaded at Amelia Island, accord- ing to the usage of such voyages. If it was, the policy attached, although literally speaking, no part of the cargo had ever been upon Amelia Island." The plaintiff had a verdict. 5. Astor V. Union Insurance Co., 7 Cowen, 202 (1827), was an action on an insurance policy on a cargo of fur. The policy contained the usual memorandum, by which, among other things, skins and hides and all other articles perishable in their own 206 PAROL EVIDENCE. nature were warranted free from average unless general. The goods were damaged by sea water, owing to wreck, and sold for half-price. The plaintiff offered to show by parol, that by the understanding of the trade in the city of New York, furs are not considered to be embraced within the meaning of the term skins and hides, the latter being those where the skin constitutes the chief value, and the former those whose value is in the fur. The evidence was admitted, under objection, and the plaintiff had a verdict for a total loss, which was sustained. 6. In AUegre's Administrators v. Maryland Insurance Co., 2 Gill, and Johns. 136 (1831), an action on a policy of insurance, it was held that evidence was competent to show whether, accord- ing to the custom and usage of insurance companies, the word " cargo " would be deemed to cover live stock. 7. In Barger v. Caldwell, 2 Dana, 129 (1834), which was an action by an apprentice against his master for failing to teach him his trade, the indenture binding the defendant to teach him the " art and mystery of the tanning business," the question put by the plaintiff whether the apprentice was a good workman in currying leather was held proper. The court say: " The term 'tanning' will include currying or not, in common parlance or in contracts, according to the general practice of any community." 8. In Smith v. Wilson, 3 B. and Adol. 728 (1832), parol evi- dence was admitted to show that the word " thousand," as applied to " rabbits," in a lease, by the custom of the country where the lease was made, denoted twelve hundred. The court say that words denoting quantity are to be understood in their ordinary sense, unless some specific meaning is given to them by statute or custom. 9. In Clayton V. Gregson, 4 Nev. and Man. 602 (1835), an action for breach of covenant in a lease of coal mines to get the whole of the veins of coal lying under certain closes " not deeper than or below the level of the bottom of the rnine," at a certain place, evidence was received to show that by the miners of the neighborhood the word level is used in a certain sense, and did not mean horizontal level. Littledale, J., says ; " I do not think this is a question so much about latent ambiguity as it is about the construction of a word in the English language. I do not think it can be said, that in ordinary language the word " level " invariably means 'horizontal,' or 'horizontal line.' It is like many other words in our language which have various meanings, USAGE. 207 iaccording to the subject-matter to which they are applied, or the parties by whom they are used. The same word may have twenty different meanings." 10. Powell V. Horton, 2 Bing. N. C. 668 (1836), was an action for damages for breach of contract to sell seventy-five bar- rels of mess pork of Scott & Co., the plaintiff alleging that the pork furnished was not pork manufactured by Scott & Co., and claiming that the contract called for pork of their manufacture ; the defendant claiming on the other hand, that the contract was satisfied by pork coming out of the hands of Scott & Co. On the trial evidence was received, under objection, to show that the words " of Scott & Co." were understood in the pork trade to mean " manufactured by Scott & Co." The plaintiff had a ver- dict which was sustained on review. Ch. J. Tindal, after giving it as his opinion that the words meant "of the manufacture of Scott & Co.," adds : " But admitting that this is left in doubt, in all mercantile contracts on which doubt arises, it is usual to call persons conversant with the trade, to state what is understood by the disputed expression." This view was concurred in by Vaughn and Bosanquet, JJ. 11. In Schooner Reeside, 2 Sumner, 569 (1837), Story, J., remarked that parol evidence may " be admitted to ascertain the true meaning of a particular wofd or of particular words in a given instrument, when the word- or words have various senses, some common, some qualified and some technical, according to the subject-matter to which they are applied." But he holds that a usage of packet vessels between New York and Boston, to be liable only for damage to goods caused by their own neg- lect, cannot be proved as against a bill of lading excepting only dangers of the seas. 12. In Sampson v. Gazzam, 15 Ala., 6 Port. 123 (1837), parol evidence received to show that the words " dangers of the river," in a bill of lading, are, by usage and custom of merchants and others, understood to include other casualties than that arising from water. The goods in question were destroyed by fire, prob- ably caused by spontaneous combustion. 13. Spicer v. Cooper, i Ad. & Ell. 424 (1841), was an action for breach of contract by which the defendant agreed to sell to the plaintiff "18 pockets of Kent hops, at lOOs." It appeared on the trial that a " pocket " contained more than 100 cwt., and as the report says, " the defendant proposed to '208 PAROL EVIDENCE. deliver the hops at lOOs. for such pocket ; but the plaintiff offered parol evidence to show that in the hop trade such a contract was understood to mean loos. per cwt. The defendant's counsel objected to the receipt of this evidence, but the lord chief justice admitted it, giving leave to move for a nonsuit. Verdict for plaintiff" on both issues." There seems to be an error inf the report. It cannot be that the plaintiff objected to receiving more than I cwt. for loos. But at all events the verdict was sustained, •Chief Justice Denman remarking: "In this case the contract was either simply ' at lOOs.' in which case evidence was admissible to explain in what sense the words are used in the trade ; or it is a perfect contract at ' lOOs. per pocket ; ' in which case, evidence is admissible as to the sense in which the trade understand the word ' pocket ' so used." 14. In Evans v. Pratt, 3 Mann, and Grang. 759 (1842), parol evidence was held admissible to explain the meaning of the words " across a country," in an agreement for a horse race. 15. Hinton v. Locke, 5 Hill, 437(1843), was an action on a contract by which the defendant had promised to pay the plain- tiff, who was a carpenter, twelve shillings per day for every man employed by him in repairing defendant's house. Parol evidence was held admissible to show that by a universal usage among carpenters, ten hours' labor constituted a days work. So that the plaintiff was entited to charge one and one-fourth day for every twenty-four hours within which the men worked twelve hours and one-half. Bronson, J., said : " Usage can never be set up in contravention of the contract ; but when there is nothing in the agreement to exclude the inference, the parties are always pre- sumed to contract in reference to the usage or custom which prevails in the particular trade or business to which the contract relates ; and the usage is admissible for the purpose of ascertain- ing with greater certainty what was intended by the parties. The ■evidence often serves to explain or give the true meaning of some word or phrase of doubtful import, or which may be understood in more than one sense, according to the subject-matter to which it is applied." 16. Grant v. Maddox, 15 Mees. and Wels. 737 (1846). The plaintiff was an actress ; the defendant a theatrical manager. A contract was made in writing, by which the plaintiff was to perform in the defendant's theater three years at a stipulated sum per week. " On the trial the defendant offered evidence to show USAGE. 209 that according to the understanding and custom of the theatrical profession, under an engagement to perform one or more years, actors were never paid during the time of vacation, when the theater was closed, but only during what was called the theatri- cal season." The plaintiff's counsel objected, on the ground that it went to explain or vary an unambiguous instrument. But the court received the evidence, and the verdict gave effect to it. The plaintiff moved for a new trial on the ground that the evi- dence was improperly received. On the argument the court refused a new trial, Baron Piatt remarking that " the parol evidence amounted to nothing more nor less than translating the contract." 17. Barton v. McKelway, 22 N. J. L. 165 (1849), was an action on a contract to deliver a number of morus multicaulis trees, of " not less than one foot high." It was held that it might be shown that by the universal usage and custom of all dealers in that article, the length was measured to the top of the ripe wood, rejecting the green, immature top. Evidence of the usage was rejected at thfe trial, and a new trial was granted for that reason. 18. Stroud V. Frith, 11 Barb. 300 (1851), was an action by an infant for a breach of covenant for not having taught the plaintiff, an apprentice, the trade of cabinet maker. The covenant in the indenture was to teach the plaintiff the " trade of a cabinet aad mahogany door maker." Parol evidence was held admissible to show that this phrase 'meant only the making of doors of mahog- any and ornamental woods. Mitchell, J., observes : " The judge, it is said, went beyond this, and allowed evidence that the plain- tiff and his father knew what the business was that the defendant carried on. But the judge allowed this (as his charge showed), not as evidence of what the meaning of the words was, but only to ascertain whether the plaintiff and his father knew of that meaning; and in his charge to the jury he only authorized a verdict in favor of the defendant, if th^y should find not only that ' the cabinet and mahogany door making ' was a distinct business in the city of New York, and that the defendant was in that trade, but also that the plaintiff and his father knew that the defendant was in that trade." A new trial was denied. 19. In Gorrissen v. Perren, 2 C. B. N. S. 681 (1857), it was held, that in an action for breach of a written contract to sell "bales of gambler," parol evidence was proper to prove the meaning of that term by the custom of merchants. 210 PAROL EVIDENCE. 20. In Lucas v. Bristow, 96 Eng. C. L. 907 (1858), parol evidence was admitted to show the meaning of the words " 50 tons best palm oil," in a contract, and to show that the words were satisfied, in mercantile usage, if the oil delivered contained a substantial portion of " best " oil. 21. In Williams v. Woods, 16 Md. 220, (i860), parol evidence of usage was received to explain a memorandum of a sale of goods. The court say: "Although specific and express pro- visions will control the usage, and exclude any such explanation, yet if the terms are technical, or equivocal on the face of the instrument, or made so by reference to extraneous circumstances, parol evidence of the usage and practice in the trade is admissible to explain the meaning." 22. In Miller v. Stevens, 100 Mass. 518; S. C. i Am. Rep. 139, such evidence was admitted to show that " barrel" meant a vessel of certain capacity, and not the statute measure of capacity. 23. In Soutier V. Kellerman, 18 Mo. 509, that two packs of shingles were regarded as 1,000, without regard to the actual quantity. 24. In Merick v. McNally, 26 Mich. 374, to reject fractions of a foot in measurement. 25. In Heald v. Cooper, 8 Me. 32, where logs were sold at a certain price for so much lumber as they are " estimated " to make, to show the general mode of estimation. 26. In Humphreysville Copper Co. v. Vermont Copper Mining Co. 33 Vt. 92, where five hundred tons of copper ore were sold, " the moisture to be deducted as usual from the weight of the ore," to show whether the custom was to deduct for moisture before or after the weighing. 27. In Brown v. Brooks, 25 Penn. St. 210, where lumber was sold by "the thousand feet," to show that this meant linear measure. 28. In Pittsburgh v. 0'Neill,*i Penn. St 343, it was held that the number of bricks laid in a pavement might by custom be com- puted by allowing a certain number to the square yard. 29. In Ford v. Tirrell, 9 Gray, 401, the case of a contract to build an octangular celler-way, at a given rate per foot, evidence of a custom to measure cellar walls in a certain way was held com- petent. 30. In Mooney v. Howard Ins. Co. 138 Mass. 375 ; S. C. 52 Am. Rep. 277, evidence of usage was held competent to show that USAGE. 211 "rags" and "old metals," on an insurance of a junk dealer's stock, include, the first, all articles used in manufacturing paper, and the second, old rubbers and old glass. 31. In Lowe v. Lehman, 15 Ohio St. 179, the case of a con- tract to furnish and lay brick at a certain price per thousand, evidence was held competent to show a custom to estimate the quantity by measurement of the walls on a rule based on the size of the brick, making slight additions for extra work and cartage, deducting openings in the walls, but not for chimneys nor jambs.. The court said : " We are unable to see anything unreasonable in the custom. The workman was to furnish the bricks and materials and lay them up by the thousand. The contract contains no specifications of the dimensions, shape, angles, or openings or arches of the wall, or of the size of the brick. It does not require a mason to know that the value of the materials depends much upon these, and such like conditions, if they are to be paid for by the numerical thousand. Again the brick are to be furnished as well as laid up. Where and how will you count them numerically? Will you count them at the kiln on the ground, or in the wall ? And who will lose the breakage in trans- portation and in handling, and the waste of filling them into the wall ? Some fair measurement of the wall would seem to be a more reasonable method. And we cannot say that this method was not a fair one. It slightly increased the estimated number of bricks in the wall, it is true. * * * AH this seems reasonable." 32. In Walls V. Bailey, 49 N. Y., 464 ; S. C. 10 Am. Rep. 407, proof was held competent to show a custom among plasterers to charge for the full surface of walls without deducting for cornices, base-boards, doors or windows. " Evidence of usage," says Folger, J., "is received as any other parol evidence, where a written contract is under consideration. It is to apply the written contract to the subject-matter, to explain expressions used in a particular sense, by particular persons as to particular subjects, to give effect to language in a contract as it was understood by those who made use of it." 33. In Symonds v. Lloyd, 6 C. B. (N. S.) 691, where there was a contract to build stone, and brick walls, at so much per superficial yard, nine inches thick, evidence was held conipetent to show a custom to reduce brick-work, for the purpose of measurement, to nine inches, but not to reduce stone-work unless exceeding two feet in thickness 212 PAROL EVIDENCE. 34. In Goodrich v. Stevens, 5 Lans. 230, N. Y. Supreme Court, a contract to buy " a crop of flax," evidence of custom was held admissible to show that among flax dealers "^crop" meant not merely what the seller raised but what he bought and controlled. 35. In Morningstar v. Cunningham, no Ind. 328; S. C. 59 Am. Rep. 211, evidence was admitted to show that the word " products,'' in the pork-packing business, does not include certain parts of the hogs, and in Bend v. Georgia Ins. Co. i N. Y. Leg. Obs. 12, to show that " glassware in casks," in an insurance policy, referred only to open casks. 36. So parol evidence has been approved to explain, " 300 bales S. F. drills, y% ; 100 cases blue do. 8|^ " ;* " fresh seed " ;' " six per cent, off for cash " ;^ to define what articles are " usually kept in country stores," a phrase in an insurance policy";* ta show that the words "harbor of New York," in an insurance policy, include Tarrytown and other places within the custom house district";* to show that a "room" included a loft not divided into rooms;* to show that " cider" means the juice of apples as soon as pressed " ;' that " gas fixtures" does not include meters;* that oil is "wet" if it contains any water whatever;' that on a contract to saw lumber, " spoiled lumber" means such as is rendered unmarketable ; " that two packs of shingles are regarded as " a thousand " ; " that " one thousand feet in each raft means Hnear measure."" 37. In Fowler v. .^tna F. Ins. Co. 7 Wend. 270, where a policy of insurance described a building, in which property insured was contained, as " a frame house filled in with brick," it was held that it was competent for the assured to prove a usage as between insurers and insured, that a house filled in with brick in front and rear, and supported on the one side by a wall of an adjoining house filled in with brick, and on the other by the brick wall of ' Salmon F. M. Co. v. Goddard, 14 • Daniels v. Hudson R. F. Ins. Co. 12 How. 446. Cush. 416. ' Ferris v. Comstoclc, 33 Conn. 513. ' Studdy v. Sanders, 5 B. & C. 628. ^ Linsley v. Lovely, 26 Vt. 123. ' Downs v. Sprague, i Abb. Ct. App. * Pindar v. Kings Co. Ins. Co. 36 N. Dec. 550. Y. 648. * Warde v. Stuart, r G. B. (N. S.) 88. * Petrie v. Phenix Ins. Co. 132 N. Y. "• Harris v. Rathbun, 2 Keyes, 312. 137. " Soutier V. Kellerman, i& Mo. 509, " Brown v. Brooks, 25 Ea. St. «to. USAGE. 213 an adjoining house, was considered " as a frame house filled in with brick," within the meaning of the policy. 38. In Page v. Cole, 120 Mass. 37, there was a sale by writing of "a milk route with all the rights and privileges thereunto appertaining," and " the right and good-will of supplying twenty- six full eight-quart cans of custom." Evidence was held admis- sible of a custom among persons selling such rights and good-will, to furnish to the purchaser customers whose average daily pur- chases amount to the number of cans sold. " It was merely as to the mode of doing business in that particular trade, and to show that certain terms, hardly intelligible in themselves, have a recog- nized and well-known meaning in that special trade." 39. , Fitch V. Carpenter, 43 Barb. 40 (1864), was an action to recover for hay delivered on a written contract for " merchantable shipping hay." The defendant insisted that the hay did not answer the description, it including clover, and offered to prove that this expression embraced timothy and red-top only. The case does not exactly disclose whether this evidence was objected to, but Miller, J., says: "The question as to what was included or excluded from the terms employed in the contract was on the trial open to evidence for the purpose of showing what was intended by the use of the words employed. It appeared that at the time the contracts were made clover was njentioned as among those kinds of hay answering the description of good, merchant- able shipping hay." At all events the reception of this evidence was approved. 40. Custom may show that fire-works and fire-crackers con- stitute part of stock of " fancy goods and Yankee notion store," in an insurance policy.^ And on an insurance of a vessel for a "whaling voyage," evidence is competent to show that this cov- ered the taking of sea elephants.^ And to show whether " all materials and labor for plumbing " included kitchen ranges.' 41. In Myers v. Walker, 24 111. 133, custom was allowed to show the meaning of the word " season " in a contract about corn ; and so of "product" in a contract about ,hogs, in Stewart v. Smith, 28 111. 397 ; and to this effect is also Waechtershauser v. Smith, 31 N. Y. St. Rep. 552, that "dangers of the river" in an insurance contract, includes other casualties than those arising ' Barnum v. Merch. F. Ins. Co. g7 N. ' Cassidy v. Fontham, 38 N. Y. St. Rep. Y. 188. 177- » Child V. Sun Mut. Ins. Co. 3 Sandf. 26. 214 PAROL EVIDENCE. from the water, such as an accidental fire. Sampson v. Gazzam, 6 Port. 123. In this case the court said: "Words are but the vehicle of thought, and if by the usage and practice of one class of the community words are used in a sense different from their acceptation among others, not engaged in the same pursuit, it would be the height of injustice to interpret their language by a rule not within their contemplation at the time of making the contract." To the same purport is Gordon v. Little, 8 S. & R. 533, in which Pickering v. Barkley, i Style, 132, was cited, holding the same as to whether a taking by pirates was " a peril of the sea." 42. In Newhall v. Appleton, 114 N. Y. 140, custom was proved to show that in a contract for book-canvassing the phrases, " fift^een dollars an order for each and every order " for an ency- clopaedia issued in volumes, and " four dollars an order " for othe^ publications issued in parts, meant every order under which vol- umes have been taken and paid for in the first case, and every order upon which ten parts or numbers had been taken and paid for, in the latter. 43. Proof of custom has even been admitted to show that "black is white," as that black selvage is commonly known to the trade as "white selvage.'"' 44. In Atkinson v. Truesdell, 127 N. Y. 230, it was held admis- sible to show that the phrase " to be taken by January ist, 1883, on dock in New York," in an order for a large quantity of glass bottles, meant in that business as the purchaser should from time specifically order, etc. The court said : " The question thus pre- sented has been the subject of frequent consideration by the courts, and the rule may be regarded as well settled that the meaning of characters, marks, letters, figures, words or phrases used in con- tracts having purely a local or technical meaning, unintelligible to persons unacquainted with the business, may be given and explained by parol evidence if the explanation is consistent with the terms of the contract. So also parol evidence may be given as to the uniform, continuous and well-settled usage and custom pertaining so the matters embraced in the contract, unless such usage and custom contravene a rule of law, or alter or contradict the expressed or implied terms of a contract, free from ambiguity. By referring to the contract it will be observed that the goods are to be taken by January i, 1883, on dock in New York. The par- ticular dock is not specified. The goods in question, being glass, ' Mitchell V. Henry, 15 Ch. Div. 181, the Master of the Rolls dissenting. USAGE. 215 require care in shipping and delivering in order that they may not be damaged by breaking. The bottles were bulky and required much space for storage. Storage in New York being expensive, we are told that it was the custom to order the goods from the manufacturer only as they were wanted for use in the business of the purchaser. Hence the custom to be taken when called for. There is nothing in the evidence received that can be said to contravene a rule of law or to contradict the expressed or implied terms of the contract. Under the explanation given as to the usage of the trade, to specifically order the goods from time to time as required by the purchaser, the phrase of the contract, ' to be taken by January i, 1883, on dock in New York,' is ren- dered intelligible and harmonious with the other provisions thereof. The question presented may be upon the border, but w^ are inclined to the opinion that the facts bring it within the rule recognizing the evidence as competent." 45. So in Smith v. Clews, 114 N. Y. 190; S. C. 11 Am. St. Rep. 627, plaintiffs, diamond merchants, delivered diamonds to M., upon his receipt for them, " on approval, to show to my cus- tomers". It was held that evidence was admissible that in the diamond business the words " on approval " had a recognized meaning, and were not understood to confer a power of sale, but only authority to show the goods to a customer and report to the owner. 46. So in McCulsky v. Klosterman, 20 Oreg. 108, it was held that parol evidence was admissible that the phrase " outstanding accounts," in an agreement for a partnership settlement, meant the accounts regarded as collectable, the other accounts having been deducted and charged to profit and loss. 47. In Redwine v. Side, — Ala. — ; 11 South. Rep. 210, it was held that the meaning of an advertisement to stand a jack for the season, " $8 to insure or no pay. If mare is sold the money is due at time of sale," may be explained in an action for fees for a mare served and sold before close of the season, by evi- dence of a general custom in the county for the owner of a stallion to carry during the season a mare put to him without cost if the mare was not with foal, but that the owner of the mare would have to pay for service if she was put only once and traded before the season was over. 48. In Hugg v. Shank, i Silvernail (N. Y. Supreme Court) 153, it was contended that the ceilings of a building were not so 216 PAROL EVIDENCE. high as the contract required. The question " in measuring for a nine-foot ceiling, what points do you measure from ? " was held proper. This is supported by Johnson v. De Peyster, 50 N. Y. 666. Sec. 58. Usage to annex incidents. Parol evidence is competent to annex to a contract a custom or usage of the business and locality, known to the parties, or so general and well settled as to be pre- sumed to be known to them, and with reference to which they must be deemed to have contracted.^ Distinction between explanation of terms and annexation of incidents : This branch of the law of usage is entirely distinct from that branch upon which proof of usage is admissible to explain expressions used in the writing. The latter is merely explanatory, while this is suppletory. The principle of its admis- sion is well stated in Humfrey v. Dale, 7 Eli. & Bl. 266: "The truth is that the principle on which the evidence is admissible: is that the parties have not set down on paper the whole of >the contract in all its terms, but only those which were necessary to be determined in the particular case by specific agreement, and which of course might vary infinitely, leaving to implication and tacit understanding all those general and varying incidents which an uniform usage would annex, and according to which they must in reason be understood to contract, unless they expressly exclude them." Early views of this doctrine : This branch of evidence was at an early day very unpopular among the judges. Story uttered a strong and influential protest against it in Schooner Reeside, 2 Sumner, 567 ; " I own myself no friend to the almost indiscrim- inate habit of settling up particular usages or customs in almost all kinds of business or trade, to control, vary or annul the gen- eral liability of parties under the common law, as well as under ' Doane v. Dunham, 79 111., 131. Roberts v. Wilder, 69 Ga. 340. Hughes V. Stanley, 45 Iowa, 622. Atwater v. Clancy, 107 Mass. 369. Smith V. Dann, 6 Hill, 543. Field v. Lelean, 6 H. & N. 617. Dobbin v. Bradley, 17 Wend. 422. Falkner v. Earle, 3 B. & S. 360. Lee V. Dick, 10 Peters, 482. Buckle v. Knoop, L. R. 2 Ex. 125. Howe V. Hardy, 106 Mass. 329. Bottomley v. Forbes, 5 Bing., N. C. 121. Perkins v. Jordan, 35 Me. 23. Gibbon v. Young, 8 Taunt. 254. Cook V. Welch, 9 Allen, 350. Allan v. Sundius, i H. & C. 123. USAGE. 217 the commercial law. It has long appeared to me that there is no small danger in admitting such loose and inconclusive usages and customs, often unknown to particular parties, and always liable to great misunderstandings and misrepresentations and abuses, to outweigh the well-known and well-settled principles of law. And I rejoice to find that of late years the courts of law, both in England and in America, have been disposed to narrow the operation of such usages and customs, and to discountenance any further extension of them. The true and appropriate office of a usage or custom is to interpret the otherwise indeterminate intentions of parties, and to ascertain the nature and extent of their contracts, arising not from express stipulations, but from mere implications and presumptions, and acts of a doubtful or equivocal character." And in Bradley v. Wheeler, 44 N. Y. 495,. Earl, Comr., said : " As to the admissibility of usages in general, the later cases show that the dislike to them which seems always to have characterized the ablest judges in this country, and par- ticularly in the State, is now becoming general." Lord Eldon said (Anderson v. Pitcher, 2 B. & P. 168): " Whether however it be not true that as much subtlety is- raised by the application of usage to the construction of a con- tract, as by the introduction of additional words, might, if the matter were res Integra, be reasonably questioned." So Lord Denman (Johnston v. Usborne, 1 1 Ad. & Ell. 549) : " I avow my great reluctance to admit that kind of evidence to vary the effect of any written document." Lord Denman says (Trueman v. Loder, 1 1 Ad. & Ell. 589) r " Parol evidence is always necessary to show that the party sued is the person making the contract and bound by it. Whether he does 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 " ; and (Trueman v. Loder, 1 1 Ad. & Ell. 589): " If a legislator were called to consider the expediency of passing a law on this subject, the conclusion at which he would arrive is hardly open to a doubt. He would decide at once that the written contract must speak for itself on all occasions ; that nothing should be left to memory or speculation. There is no^ ^18 PAROi EVIDENCE. inconvenience in requiring parties making written contracts to write the whole of their contracts; while in mercantile affairs no mischief can be greater than the uncertainty produced by per- mitting verbal statements to vary bargains committed to writing. But the nature of this explanatory evidence renders it peculiarly dangerous," etc. " The custom fully proved, it will almost always remain doubtful whether the parties to the individual contract jeally meant that it should include the custom." In Paine v. Smith, 33 Minn. 495, the court said : " We may say that it is too broad a statement to assert, without qualifica- tion, that the modern drift of judicial opinion is in favor of greater latitude in the introduction of proof of usage or custom to explain or construe contracts. In a commercial community many words or phrases acquire a technical meaning, well under- stood by those in a particular trade or business. Certain business -customs and usages also become well established and understood by business men, who in making their contracts assume them, and take them for granted, and contract with reference to them, -without taking time to incorporate them into the expressed terms of their. bargain. Hence from the necessities of the case arising from such habits, courts are no doubt inclined (and properly so) to greater latitude than formerly in admitting evidence of usage to explain the expressed terms of a contract, and to add to it mere incidents not expressed, but not inconsistent with what is expressed. But courts are still uniformly opposed to allowing evidence of custom to vary or contradict the plain-expressed terms of a contract, or to imply from these terms an obligation different from what the law would imply, or as was in effect sought to be done in this' case, to imply an obligation in the absence of any contract on the subject." But the tendency of the most recent adjudications has been correctly described by Browne (Usages and Customs, 72) as fol- lows: "A tendency upon the part of the judges to extend the office of a usage, and while they have been as unwilling to allow a usage to rule express words, they have allowed a usage to supply words and incidents to a written contract which were not inconsistent with it. They too looked to the intention of the parties, but they came to the conclasion that the real drift of these intentions would be better ascertained by a careful regard to the circumstances of the individual at the time of the contract than from a slavish regard only to the written words of the instru- USAGE. 219 •ment.' Baron Maule remarked, in Robertson v. Jackson, 2 C. B. 412, that if a party were to contract to transport a lion, evidence would be admissible to show that it was customary to cage such animals. In a word, the modern doctrine seems to be that the usage of a business forms the basis of any contract in respect to it, and rules its construction, except where it is otherwise provided in the writing. The office of usage in respect to written contracts has been very clearly stated by the Supreme Court ,of the United States in Oelricks v. Ford, 23 How. 62,, followed in Barnard V. Kellogg, 10 Wall. 383, and The Delaware, 14 Wall. 602, as follows: " Evidence of usage is admissible in mercantile contracts to prove that the words in which the con- tract is expressed, in the particular trade to which the contract refers, are used in a particular sense, different from the sense whiclf they ordinarily import ; and it is also admissible in certain cases for the purpose of annexing incidents to the contract in matters upon which the contract is silent, but it is never admitted to make a contract or to add a new element to the terms of a contract previously made by the parties. Such evidence may be introduced to explain what is ambiguous, but it is never admissible to vary or contradict what is plain. Evidence of this kind may be admitted for the purpose of defining what is uncertain, but it is never properly admitted to alter a general rule of law, nor to make the legal rights or liabilities of the parties other or different from what they are by the common law." In a celebrated leading case Lord Mansfield held that a custom that the tenant shall have the away-going crop after the expiration of his term is good, if not repugnant to the lease.' Lord Mansfield said : " It is just, for he who sows ought to reap, and it is for the benefit and encouragement of agriculture. It is indeed against the general rule of law concerning emblements, which are lo- allowed to tenants who know when their term is to cease, because it is held to be their fault or folly to have sown, when they knew their interest would expire before they could reap. But the custom of a particular place may rectify what otherwise would be imprudence or folly. The custom does not alter or contradict the agreement in the lease ; it only adds a right which is consequential to the taking, as a heriot may be due by custom although not mentioned in the lease." 1 Wigglesworth v. Dallison, r Doug. 201 ; S. C. i Smith Lead. Cas. ot. 2, p. 670. 220 PAROL EVIDENCE. Illustrations: r. The following are leading illustrations of this rule : On a contract of hiring, the custom to allow certain holidays is allowable.' To show that all sales in a trade were made by sample.^ On an engagement at a yearly salary, with a stipulation for increase at the end of the year, a custom to deter- mine the hiring by a month's notice at any time.' On a sale of West India rum, the custom to allow warehouse rent to the purchaser.^ On a sale of goods by a broker in London, to be paid by bill, the custom of the principal to refuse the credit.* As to the weight of a cargo, to determine the amount of freight, the custom of the port of delivery.' On a contract signed " as agents for merchants," the custom to hold the broker personally unless he disclosed the principal's name within a reasonable time.' On a charter party to pay so much per ton for goods shipped at Bombay for London, evidence is competent to show a custom to pay according to measurement at Bombay before loading.' So cus-. tom is provable to authorize a discount of three months' interest, from freights under bills of lading on goods coming from ports in the United States.' So custom is admissible, on contracts between brokers for sale of mining shares, to make delivery at the time appointed for payment.'" So of a custom among ship-brokers that every " introducing broker " should receive a renewed com, mission on every renewal of a charter effected through him." This was laid down by Bramwell and Martin, Barons, Pollock. C. B., dissenting on the ground that the custom was not one in the ordinary course of business but subject to special agreement. Bramwell, B., said : " A custom may be annexed to documents with which it is not inconsistent.' but "such a custorr ought to. be narrowly watched." On 3 deposit of wheat with a warehouse- man evidence may be given o' a custom to store it with other grain in common bins, and that the same number of bushels should be regarded as the storer ? property, and the warehouse- man was not liable for its loss by fire.'^ ' Queen v. Stoke-upon-Trent, 5 Q. B. McPherson v. Cox, 86 N. Y. 472. 303. ' Hutchinson v. Tatham, L. R. 8 C. P. ' Syers v. Jopas 2 Exch. iii. 482. • ' Parker v. Ibbetson, 4 C. B., N. S. 346. Fleet v. Murton, L. R. 7 Q. B. 126. • Fawkes v. Lamb, 31 L. J., N. S. Q. B. ' Bottomley y. Forbes, 5 Bing. N. C. IJI. ° Falkner v. Earle, 3 B. and S. 360. • Hodgson V. Davies, 2 Camp. 530. "• Field v. Lelean, 6 H. & N..617. • Hudson V. Ede L. R. 2 Q. B. 566, 3 " Allan v. Sundius, i H. & C. 121. id. 412. " Hughes v. Stanley, 45 Iowa, 63 USAGE. 221 2. On a contract to furnish and lay up brick in the wall for a certain price per thousand, evidence was allowed of a custom to measure instead of counting them.' So to show that two packs of shingles were counted as a thousand ^ So to allow a commis- sion merchant to dispose of warehouse receipts for grain, keeping on hand others ready to respond.' So to allow a member of a board of trade to sell a customer's property for default of margins.'' So to show that taking a note at three months for goods, the pay- ment of which is guaranteed upon a credit of that time, is within the guaranty, although the note entitles the debtor to three days of grace. ° So in respect to an insurance policy, to show a cus- tom to use camphene in printing establishments to clean type.' On a contract to employ a broker to sell a ship he may recover commissions from the seller by merely introducing the buyer to him, upon proof of custom to .that effect.' It is competent to show the custom of average adjusters at a port where a vessel has put in to refit, to treat the expenses o*" discharging the cargo as general average, but the expenses of warehousing and reshipping the cargo as particular average.^ 3. On a contract of carriage to show the manner of delivery customary at the destination. On a sale of berries in bags, to show that the sample represented the entire lot and not each bag.'" On a sale by sample and weight, to show that the weight was to be as already marked on the cases, and not by weight at the time of sale." Where the charter party is silent, to determine the commencement of lay-days by the usage of the port '^ On a pur- chase of wheat, to supply time and place of payment '* On a sale of "first quality clean barley, " to show that delivery was to be made in sacks." On a contract to buy goods of a manufact- urer of them, to show that that they were to be of his own make." ' Lowe V. Lehman, 15 Ohio St. 179. Farmers', etc., Bank v. Champlain, etc., * Soulier v. Kellerman, 18 Mo. 509. Co. 18 Vt. 131. • Bailey v Bensley 87 111. 556. Irish v. Railroad Co. 19 Minn. 376. ♦ Corbett v. Underwoood 83 III. 324. N. Y. Cent. , etc. , R. Co. v. Standard Oil « Smith V. Dann, '» Hill 543. Co. 87 N. Y 486. ' Harper V. City Ins. Co. i Bosw. 520. '« Schnitzer v. Print Works, 114 Mass. Citizens' Ins. Co v McLaughlin, 53 123 Pa. St. 485 " Jones v Hoey. 128 Mass. 585. Cook V. Welch 9 Allen, 350. " Barke v. Borzone 48 Md. 474. » Atwood V. Sellar, 5 Q. B. Div. 286. " Mane" \r. Trail 92 Ind. 521; S. C. 47 » Richmond v. Union St. Co. 87 N. Y. Am. Rep. 163; '* Robinson ' . U. S., 13 Wall. 363. Loveland v. Burke, 120 Mass. 139. " Johnson v. Raylton, 7 Q. B. Div. 436. 222 PAROL EVIDENCE. 4. On the question of due diligence of a carrier in shipping potatoes from New York to Belfast, evidence was held admissible to show a custom at New York to ship them to Liverpool or Glasgow and there to reship them to Belfast, as the usual and most expeditious manner.' A general custom of insurance com- panies has been allowed to be proved to bind them to accept premiums after they are due.^ Where a lease is from a day named, proof of a local custom that it begins and ends at noon is admissible.^ 5. To show that under a contract to build a draw-bridge, it is the common understanding in the business that it must be capa- , ble of being easily turned in two or three minutes by one man.* To charge interest.* For manufacturers to pay freight on goods , sold and shipped.' For buyers of beer in the spring to have right to return what remained unsold at the end of the season.' A con- tract for the excavation of a city lot being silent as to whom the sand should belong to, proof was allowed of a custom that it belonged to the excavator and not to the owner of the lot.' Proof of a custom to allow the tenant the away-going crop is admissible, although the lease gives no such right.' In an action on contract by telegram for purchase of wheat by merchants in Baltimore from merchants in this State, there being no stipulation for time and place of payment, evidence is admissible to show a custom among merchants in the State for payment to be made in Balti- more upon arrival of the wheat.'" 6. A firm of ship-brokers signed a charter-party in the form "by telegraphic authority ' of the charterer 'as agents," Fvidence was admitted lo explain the effect of the form of signature, and that it was commonly adopted to negative the implication of any further warranty by the agent than that he had received a telegram, w 'ch, if correct, authorized the charter." A quantity-surveyor was mployed by an architect to take out ' McKay v. New York, etc., R. Co. 50 ' Wilcox v. Wood, 9 Wend. 346. Hun, 563. * Railroad Co. v Smith, 21 Wall. 262. ' Girard Life Ins. Co. v. Mut. Life Ins ' Ester.y v Cole. 3 N. Y 502. Co 36 Pa. St. 236. ' Howe f Hardy 106 Mass. 329. Baxter v. MaSsasoit Ins. Co. 13 Allen, ' Meldrum v Snow, 9 Pick. 441. 320. ' Coopei V Kane, 19 Wend. 386. Contra . Busby v. N. A. Life 3. Co. ' Stulti v Dickey , Binney. 285. 40 Md. 572. ° Mand v. Trail 92 Ind. 521, S. C. 47 Mut. Ben. Life Ins. Co. v. Ruse, a Ga Am Rep. 103. 534. ' Lilly V Smales, 1892, i Q. B. Div. 456. USAGE. 223 quantities for a building ; a builder tendered for the work upon a specification which embraced the clause : " To provide for copies of quantities arid plans, 25 guineas to be paid to the surveyor out of the first certificate;" his tender was accepted, and he received the first installment of the price from the owner. In a suit by the surveyor against the builder for the 25 guineas, evidence was allowed of a usage that the builder whose tender was accepted was liable to the surveyor for the amount due for the quantities, but if no tender was accepted the building-owner or architect was liable.' Where a railroad company accepted goods addressed to a point beyond its terminus, and gave a bill of lading for carriage to its terminus, evidence was admitted of a custom to deliver to a connecting carrier.^ 7. In Richmond v. Union Steamboat Co., 87 N. Y. 240, the court approved proof of a custom at Buffalo, that when grain was shipped in the same vessel to different consignees, each was at liberty to designate the elevator for the discharge of his portion, and the carrier was bound to discharge it there. 8. In Sims v. United States Trust Company, New York Supreme Court, 35 Hun, 533, there was deposited with the defend- ant corporation by Crowell, an agent of J. Marion Sims, a check for $5,000, drawn by the said Sims to the order of the defendant corporation. A certificate of deposit was issued by the defendant acknowledging the receipt of the said amount from Crowell, in trust for J. Marion Sims, and making it payable to Crowell in trust. Crowell having subsequently drawn out the money and converted it to his own use, this action was brought by Sims' executor to recover the amount so deposited. Upon the trial the defendant, to escape being charged with notice of Sims' ownership of the money by reason of the form of the check, offered to prove " a well-established commercial custom, existing for many years throughout the United States, whereby banks and trust companies and other financial institutions, in the absence of a restrictive indorsement, accept as cash checks drawn to their own order, and deposit or apply the same as directed by the persons presenting such checks." Held, that the court erred in refusing to admit proof of such custom. The court observed : " It is contended by the learned counsel for the plaintiff that this custom overrides the law, but this does not so clearly appear. It is true that custom and usao-e are not permitted to have effect North V. Barrett, 1892, 1 Q. B. Div. 333. ' Hooper v. Chicago R. Co. 27 Wis. 81, 224 PAROL EVIDENCE. when they contravene any established rule of law. 2 Greenl. Ev., sec. 246. And that usage cannot alter the law. Thompson v. R'ggs, 5 Wall. 663, 980. And further, that ' a clear, certain and distinct contract is not subject to modification by proof of custom. Such a contract disposes of all customs and practices by its own terms, and by its terms alone is the conduct of the parties to be regulated and their liability to be determined.' Simmons v. Law, 3 Keyes, 217. It is true also that usage, is admissible to explain an ambiguity, but it is never received to contradict what is plain in a written contract, although this is a repetition in another form ' of the doctrine already expressed. CoUender v. Dinsmore, 55 N. Y. 208 ; Barnard v. Kellogg, 10 Wall. 383, 391 ; Bradley v. Wheeler, 44 N. Y. 495 ; Walls v. Bailey, 49 id. 464 ; Wheeler v. Newbould, 16 id. 392. But these rules are not applicable to the transaction in question, for the reason that the contract is not expressed in the instrument by which the deposit was made. It is a direction to the People's Bank to pay to the defendant a cer- tain sum of money, whether for the benefit of the holder or the drawer does not appear from the contract itself, although, as already suggested, the fair inference is that it was intended as a transfer from one depository to another, and although the purpose of such transfer, it must be conceded, was not expressed, and does not appear, inferentially or otherwise. The transaction is however converted into a well-understood con- tract by force of the usage, if it existed as asserted by the defendant, for the reason that the presenter has the right under its efficacy to require the application of it as he desires. The language employed in the case of Walls, v. Bailey, supra, elucidates and controls. It is there said ' every legal contract is to be interpreted in accordance witli the intention of the parties making it.' " Character of the usage : " A custom or usage which binds the parties to a contract does so only upon the principle either that they have knowledge of its existence, or that it is so general that they must be supposed to have contracted with reference to it.* It must be shown that the parties are all engaged in the business in question and are within the sphere of operation of the usage.' The usage is not binding if one of the parties is unfamiliar with ' Harris v. Tumbridge, 83 N. Y. 92. Soulier v. Kellerman, 18 Mo. 509. ' Barker v. Borzone, 48 Md. 474. Ripley v. ^tna Ins. Co. 30 N. Y. 136. USAGE. 225 the tra.de or the locality/ The requisites of the proof of knowledge of the custom are well stated in German-Am. Ins. Co. v. Com. F. Ins. Co. — Ala. — ; 1 1 So. Rep. 1 1 7, in Which it was held that a cus- tom among underwriters in New York city to class certain stores as distinct buildings for purposes of insurance, and to insure them severally as separate risks, is not binding on an insurance company domiciled in Alabama, without proof that the latter had knowledge of such custom when a contract was made with another company for reinsurance in that city. The court observed : " While it is well settled at this day that the existence of a usage in respect of the subject-matter of a contract may have the effect of giving to its terms definitions which would not otherwise attach to them, the doctrine rests, except in particular instances, solely upon the theory that the parties in entering into the compact had such usage' in mind, stipulated with reference to it, and hence made it a part of their contract ; and whether a usage, in a given case, is thus to be taken as a part of the contract, whe-ther the parties had it in view in their negotiations, and intended that their agree- ment should be read and construed with reference to and in the light of such usage, is always a question of fact. And as in the nature of things, no man can be said to have contracted with reference to a fact — to have had a fact in mind — of which he was ignorant, usage relied on by one party to give color to the obliga- tions of another, or to impose a liability which does not arise on the ordinary meaning of the terms of their contract, must be shown to have been known to such other party. This is usually done by proof of an established usage, certain, uniform and reason- able in character, and of such general acceptance, and consequent notoriety, as that a prima facie presumption of knowledge of it on the part of him who is sought to be affected by it arises, and unrebutted, affords the predicate for the further presumption, of a conclusive nature, that he considered it in the particular dealing to which it is incident, and made it as much a part of his contract as if it had therein been specifically referred to. In the case' at bar the onus was on plaintiff to prove, not only that the usage relied on had been established and existed at the time of the con- tract, but also that the defendant had knowledge of it, and there- • Walls V. Bailey, 49 N. Y. 464. Buckle v. Knoop, L. R. 2 Ex. 125. Abbottv. Bates,43L. J.,N.S.C.P.i50. Southw. Freight Co. v. Stanard, 44 Bentley V. Doggett, 51 Wis. 224. Mo. 71. Gaboy v. Lloyd, 3 B. & C. 793. Tones Const. Cont. sec. 115. 226 PAROL EVIDENCE. fore is to be holden to have contracted with reference to it. There is no direct evidence of such knowledge. The inference of knowledge is sought to be rested alone on proof of the establish- ment, existence and prevalence of the usage in the city of New York. Had both contracting parties been domiciled in that city, and entered into a reinsurance compact solely with reference to risks located there, there would be some ground to say that defendant would be \\&\A. prima facie to a knowledge of the usage. But the domicile of defendant was in Alabama, and the reinsur- ance compact contemplated and provided for the taking of risks, not only in the city of New York, but throughout the country. Not only so, but the correspondence between the parties demon- strates that risks were actually incurred under the compact in a number of other towns and cities. It cannot be supposed that the Commercial Company had knowledge of the local usages incident to the business of insurance in each of these numerous localities, and so contracted with reference to them that its obliga- tions, expressed in clear and unambiguous terms, imported a liability for one sum on a given state of facts in New York city, another sum on the same facts in Brooklyn, another in Litchfield, Conn., yet another in Chicago, and so on ad infinitum. The law to the contrary is well settled that proof of such local usages will not raise up a presumption of a knowledge of their existence on the part of one engaged generally in the business to which they pertain in a certain city, at least where the domicile of the party sought to be charged is elsewhere ; or in other words, that in order to create even a prima facie presumption that a party has knowledge of a usage incident to a particular business about which he is engaged, the usage must be shown to be a general one in that business, in such sort as that it would be unreasonable to suppose he was ignorant of it. This plaintiff has failed to do. No general usage is proved, or attempted to be proved, and the defendant cannot be held beyond the terms of its compact dis- sociated from any effect the alleged usage is claimed to have upon those terms. Cobb v. Infe. Co., 58 Me. 326; Lawson Usages & Cust. sees. 17, 25-27 ; Hill v. Ins. Co. 10 Hun, 26; Railroad Co. v. Johnston, 75 Ala. 596; Smith v. Rice, 56 Ala. 417; Herring v. Skaggs, 73 Ala. 446 ; Bradley v. Wheeler, 44 N. Y. 495 ; Child v. Ins. Co., 3 Sandf. 26 ; Walls v. Bailey, 49 N. Y. 464 ; Higgins v. Moore, 34 N. Y. 417. The presumption of knowledge of an established usage, which arises upon proof of its generalit}^' in the USAGE. 227 business or trade to which it is incident, is, as we have indicated, generally speaking, only prima facie, and hence rebuttable by direct evidence of a want of such knowledge. Walls v. Bailey, supra. With reference to contracts of insurance there is this exception to the doctrine just stated : that insurance companies are under such a duty to inform themselves of the usages of the particular business insured as that they will not be heard to deny sych knowledge. This only means however that where a general usage in business is proved, a usage of the character that raises up the prima facie presumption or knowledge in ordinary cases, the insurer, in view of the duty resting on him to acquaint him- self with the general usages of the business, will not be let in to rebut the presumption, which in consequence becomes a conclu- sive one as to him. But an insurer is no more bound than any other party by proof of usages obtaining to a greater or less extent, territorially or otherwise, in respect of the business insured, which are not general in their nature, but obtain only in certain localities, or not substantially in all instances of the particular business. So that if it were conceded here that had the proof established the New York city usage in question as incident to the insurance business generally throughout the territory contem- plated in this reinsurance compact, the defendant would not be heard to assert its ignorance of it, or to deny that it contracted with reference to it, yet the predicate for this quasi estoppel is wholly lacking, in that the proof adduced is not of such general usage, but only of one that is local and peculiar to the city of New York — a particular usage or custom, the existence of which raises no presumption at all that defendant had knowledge of it. La,wson Usages & Cust. sees. 17, 19, 26." See also Robinson v. MoUett, L. R. 7 H. L. 802; Scott v. Irving, i B. & Ad. 605. "People in Liverpoolmay well be supposed to be ignorant of rules in existence on the other side of the world at Sidney."' Individual usage : Where a person has adopted special modes of transacting business, or uses words in a peculiar sense, and this is known to and understood by those with whom they deal, their agreement will be construed with reference thereto, and their former dealings may be proved to show acquiescence therein.^ 1 Kirchner v. Venus, 12 Moore P. C. 361. Fabbri v. Phoenix Ins. Co., 55 N. Y. * Jones Const. Cont., § 112. 129. Warren Bank v. Parker, 8 Gray, 221. Grinnell v. West. Union Tel. Co., 113. Marrett v. Brackett, 60 Me. 524. Mass. 2gg. 228 PAROL EVIDENCE. Evidence is admissible of a particular custom of dealing as between the parties, although it may substitute a limited written agreement for a broader implied oral one. As where a carried accepts goods without delivery of a bill of lading, and afterwards delivers a bill limiting his common-law liability, this will operate as a valid limitation accordingly, if such has been the custom of the parties.^ Sec. 59. When usage not provable. Evidence is inadmissible to prove a custom or usage that is vague, inconclusive, unreasonable or absurd, or that varies an express agreement, or infringes a sound rule of law.* Stewart v. Aberdein, 4 M. & W. 211. Robinson v. Mollett, L. R., 7 H. L 802. Renner v. Bank of Columbia, 9 Wheat. 582. East Tenn., etc., R. Co. v. Johnston, 75 Ala. 596 ; S. C. 51 Am. Rep. 489. ' Perry V. Thompson, g8 Mass. 249. " Nat. Bank v. Burkhardt, 100 U. S. 686. Barnard v. Kellogg, 10 Wall. 383. Ins. Co. V. Wright, i Wall. 470. Rankin v. Am. Ins Co., I Hall, 619. Groat V. Gile, 51 N. Y. 431. Pindar v. Cont. Ins. Co., 36 N. Y. 648. Frith V. Barker, 2 Johns. 327. Vail V. Rice, 5 N; Y. 155. Woodruff V. Merch. Bank, 25 Wfend. 673,674. Dykers v. Allen, 7 Hill, 499. McKim V. Aulbach, 130 Mass. 481 ; S. C. 39 Am. Rep. 470. Jones V. Hoey, 128 Mass. 5S5. Davis V. Galloupe, iii Mass. 121. Snelling v. Hall, 107 Mass. 134. Potter V. Smith, 103 Mass; 68. Dickinson v. Gay, 7 Allen, 29. Greenstine v. Borchard, 50 Mich. 434; S. C. 45 Am. Rep. 51. Sohn V. Jervis, loi Ind. 578. Franklin Life Ins. Co. v. Sefton, 53 Ind. 380. .Spears v. Ward, 48 Ind. 541. Johnston v. Bank, loi Pa. St. 600. Green v. Milwaukee, etc., R. Co., 38 Iowa, 100. Bridgeport Bank v. Dyer, 19 Conn. 136. Brown v. Kough, 52 L. T. Rep. (N. S.) 878. Bourne v. Gatliff, 1 1 CI. & F. 45. Bailey v. Bensley, 87 Hi. 556. Corbett v. Underwood, 83 111. 324. Smyth V. Ward, 46 Iowa, 339. Randolph v. Halden, 44 Iowa, 327. Marks v. Cass Co. Mill Co., 43 Iowa, 146. Randall v. Smith, 63 Me. 105. Polhemus v. Heiman, 50 Cal. 438. Cooke V. England, 27 Md. 14. Wetherill v. Neilson, 20 Pa. St. 448. Coxe V. Heisley, 19 Pa. St. 247. Schenck v. Griffin, 38 N. J. L. 462. Phoenix Ins. Co. v. Taylor, 5 Minn. 492. Spartali v. Benecke, 10 C. B. 212. Blackett v. Royal Ex. Ass. Co. 2 Cr. & J. 244. Hall V. Janson, 4 El. & Bl. 500. Cockburn v. Alexander, 6 C. B. 791. Hayton v. Irwin, L. R., 5 C. P. Div. 134. Odiorne v. N. E., etc., Ins. Co., loi Mass. 551. Security Bank v. Nat. Bank, 67 N. Y. 458 ; S. C. 23 Am. Rep. 129. USAGE. 229 Illustrations : i. As of a custom of real estate brokers to charge commissions to both parties.' Or that stock certificates, issued in the name of one as trustee, and by him transferred in blank, are constantly bought and sold without inquiry.^ Or on a contract to make a " satisfactory " suit of clothes, of a custom to try on the garments after they were finished, and then to alter if necessary.* Or to show that a miller's receipt for wheat imported a sale and not a bailment.^ Or to reject an undisclosed principal and look to the broker who signed as broker.' Or a custom of London corn factors to sell in their own name." In Odiorne v. N. E., etc., Ins. Co., loi Mass. 551, by a policy of insurance the insured vessel was " prohibited from " certain waters and ports between certain dates. Evidence of the oral statement of the president at the issuing of the policy, that a violation would not avoid the policy, and of custom to that effect, was excluded. In respect to a marine policy, evidence is not admissible of a usage, before liability attaches, to exact a port-warden's survey certify- ing that the goods were properly stowed, and were damaged by the perils of the sea in transit.'' Oakley, J., said: "It would be creating a condition precedent to the plaintiff s right of recovery, where the contract itself expresses none," and would be " unrea- sonable," because not made conclusive nor even evidence. A local custom to require a lessor to cleanse a house before the lessee takes possession, is inadmissible.** So of a usage among undertakers to charge to each funeral "the entire cost of certain articles of funeral feature.' So of a usage that if one broker merely introduces another broker to a ship-owner who subse- quently transacts business with him, the first is entitled to a com- mission thereon.'" 2, In Collender v. Dinsmore, 55 N. Y. 200; S. C. 14 Am. Rep. 224, it was held inadmissible to show a custom among connecting express companies transporting goods marked " C. O. D.", to transfer the goods with the bill to the succeeding company and await return of proceeds. Allen, J., said : " Custom and usage is ' Raisin v. Clark, 41 Md. 158; S, C. 20 " Johnston v. Usborne, 11 Ad. &E1I. 549. Am. Rep. 66. ' Rankin v. Am. Ins. Co., i Hall (N. Y. * Shaw V. Spencer, 100 Mass. 382; S. C. Super.) 619. I Am. Rep. 115. * Sawtelle v. Drew, 122 Mass. 228. " Brown v. Fostei;, 113 Mass, 136; S. C ' Paxton v. Courtnay, 2 F. & F. 131. 18 Am. Rep. 463. '» Gibson v. Crick, 31 L. J., N. S. Ex. * Wadsworth v. AUcott, 6 N. Y. 64. 304. * Trueman v. Loder, 11 Ad. & Ell. 589. 230 PAROL EVIDENCE. resorted to only to ascertain and explain the meaning and inten- tion of the parties to a contract when the same could not be ascertained without extrinsic evidence, but never to contravene the express stipulations; and if there is no uncertainty as to the terms of a contract, usage cannot be proved to contradict or qualify its provisions. In matters as to which a contract is silent, custom and usage may be resorted to for the purpose of annexing incidents to it. But the incident sought to be imparted into the contract must not be inconsistent with its express terms or any necessary implication from those terms. Usage is sometimes' admissible, to add to or explain, but never to vary or contradict, either expressly or by implication, the terms of a written instru- ment, or the fair and legal import of a contract. * * * There was no evidence of any usage which could add to, vary, or affect in any way, the meaning of the words, ' from Turner's Express Company, Boston." That is to say, if those words had not been present, and 'C. O. D.' had stood alone, the evidence would have been competent. 3. So in Randall V. Smith, 63 Me. 105; 18 Am. Rep. 200, where a contract was made whereby defendant agreed to carry for plaintiff a cargo of coal from New York to Portland at a fixed price, which cargo plaintiff agreed to furnish. Held, that defend- ant could not excuse a breach by him of the contract by showing that by the usage at Portland such an agreement is treated as a permit to the vessel to load with coal, if the master finds it con- venient, but if not, he may throw up the order without incurring liability for damage^ and likewise the shipper may decline to fur- nish the coal, such usage being repugnant to the contract and contrary to law. And in Rogers v. Woodruff, 23 Ohio St. 632 ; S.C. 13 Am. Rep. 276, on sales of goods "to arrive by" a certain time, it was held that evidence that by the custom of merchants those words mean "deliverable by" that time was inadmissible, for the words do not import any warranty that the goods shall arrive by that time. So in an action against a telegraph com- pany for a mistake in sending a message, evidence of a usage in a local office of the company is inadmissible to vary the terms of the contract under which the message is sent.* So as to the word "settlement" in a mercantile contract, Susquehanna F. Co. V. White, 66 Md. 444; S. C. 59 Am. Rep. 186, evidence of a local usage to attach " a peculiar meaning " to it was rejected. This ' Grinnell v. Western Union Tel. Co. 113 >tass. 299; 18 Am. Rep. 485. USAGE. 231 was on the ground that " it was not stated what that peculiar meaning was," and " a court must know what a usage is before it can safely admit evidence of its existence " ; and the court would not have it understood that proof of usage is never admissible to explain the meaning of words. 4. In Silberman v. Clark, 96 N. Y. 522, it was held that a contract to deliver steel " free on board " vessels, might not be varied by proof of custom that it should be subject to inspection- fees. This maybe said to be a case of absolute contradiction and not of explanation, and so distinguishable from Brown v. Byrne, 3 Ell. & Bl. 703. The case was not much considered, no author- ities were cited, the court merely saying "the meaning of the language used cannot be changed or varied by proof of any cus- torn," and the rails could not be " free on board if they were to be subjected to the expenses of inspection." So in Willmerling V. McGaughey, 30 Iowa, 205 ; S. C. 6 Am. Rep. 673, an action upon a written contract for the sale of hogs, " to be delivered by giving ten days' notice at any time in June," parol evidence was held inadmissible to show how such contracts were understood by stock dealers, that the contract obliged defendant to deliver dur- ing that month without notice, and that giving notice was at plain- tiff 's option. This was put on the ground that the language was unambiguous, not new, technical nor peculiar, but plain and com- mon, and that the proof would absolutely contradict its ordinary and popular meaning. So on a contract to pay " freight meas- urement," evidence was excluded of a custom to require before payment an account from the plaintiff and to deliver the meas- urement.' 5. Custom has been held inadmissible to show that on a sale of sheep the wool did not go to the purchaser.^ Where there was a sale of " a lot of canal oats, say about four thousand bushels, more or less," evidence that by custom the phrase " more or less" was meant to provide for a variation of not above five per cent, was excluded.^ So to deny days of grace on a bill of exchange/ To allow brokers to pledge or dispose of collateral stocks at pleasure, returning an equal number of shares of the same kind.'* Where articles for a whaling voyage authorized the master to dis- place any ofificer or seaman deemed by him incompetent, and ' Gibbon V. Young, 8 Taunt. 254. . ' Woodruff v. Merch. Bank, 25 Wend. ' Groat V. Gile, 51 N. Y, 431. 673. ' Vail V. Rice, 5 N. Y. 155. ' Dykers v. Allen, 7 Hill, 499. 232 PAROL EVIDENCE. reduce his lay, substituting another person, it was held incompe- tent to show a usage never to disrate an officer to a seaman, but instead to discharge him.' Where there was a contract for sale of coal to be shipped between June nth and Sept. ist, "at the plaintiff's option," and he called for it on August 24th, it was held incompetent to show a usage of the part of shipment, to require the option to be given in season to allow the coal to be shipped between the dates named. ^ On a contract to cut stone for a building according to certain plans, usage was held incom- petent to show that the owner of the building was to pay for the necessary wooden patterns.' On a contract to sell and ship potatoes, evidence is not admissible to show a custom to ship not to the purchaser, but to the seller himself.^ Evidence was held inadmissible to show the defendant's custom to receive premiums after they were due.^ On a contract to deliver " fat, smooth and merchantable steers, three and four years old, to average twelve hundred pounds gross weight, none to weigh less than one thou- sand pounds," evidence of a custom attaching a different meaning was excluded.* So of a contract to "clear oyt the field." '^ 6. Where a receipt to Vance was given for a note of $600, "which note, if discounted at said bank, five hundred dollars is to be applied to said Vance's credit" with a specified firm, evi- dence was held inadmissible to show that the note was payable unconditionally.' A receipt for corn, " subject to storage," stating the quantity but no price, may not be shown to be by custom a sale rather than a bailment.' A lease of a coal mine stipulating to leave the mine in good working order, a custom to remove the supports and pillars of coal may not be shown." A contract for railroad ties providing that they would be inspected and accepted or rejected "when being distributed on the road-bed in advance of the track," it was held that custom was not provable to show an acceptance by a preliminary inspection and marking." Custom cannot vary the effect of an agreement to deliver " in good order." '^ Nor construe a contract to ship and carry freight as binding only at the convenience of either party.'' A carrier on ' Potter V. Smith, 103 Mass. 68. ' Harper v. Pound, 10 Ind. 32. ' Snelling v. Hall, 107 Mass. 134. * Stone v. Vance, 6 Ham. (Ohio) 246. ' Davis & Galloupe, iii Mass. 121. ' Marks v. CSss Co. etc. Co., 43 Iowa, 146, * Sohn V. Jervis, loi Ind. 578. '» Randolph v. Halden, 44 Iowa, 327. ■^ Franklin L. Ins. Co. v. Sefton, 53 Ind. " Smyth v. Ward, 46 Iowa, 339. 380. '* Polhemus V. Heiman, 50 Cal. 438. • Spears v. Ward, 48 Ind. 541. '* Randall v. Smith, 63 Me. 105. USAGE. 2;].> the Pennsylvania canal may not set up a usage exempting him from liability for injury by dangers of navigation, fire, or unavoid- able accident.' Where a note is given for a horse, evidence is not receivable of a custom to allow the purchaser time to try the horse before the sale becomes absolute.^ In case of an ordinary marine insurance, custom may not defeat the liability, on money advanced for freight, to make good a general average.'' Where a contract for sale of goods stipulated for a credit of a month, evidence was excluded to show a custom not to deliver without payment.* Evi- dence is not admissible of a custom of shippers and insurers to regard the expression, " not below A 2," in open policies, as referring to the rate of vessels, or the register of the insured vessels.^ So under a charter-party for a cargo of wool, at specified prices of freight for pressed and unpressed wool, it was held inad- missible to show a custom to impose the cost of pressing on the ship-owner.^ So where notes of a third party were transferred in payment for goods, custom was excluded to show that the trans- ferrer incurred the liability of an indorser.' Evidence of the conversation of the parties and of the custom of insurance com- panies, was held inadmissible to show that the word " epidemics " in a life insurance permit to travel, included yellow fever* Freed- man, J., observed: " It is also true that the rule referred to is directed only against the admission of any other evidence of the language employed by the parties in making the agreement than that which is furnished by the writing itself, and that the writing may be read by the light of the surrounding circumstances. But this is permitted only for the purpose of finding out the true sense of the written words as the parties used them. * * * Unless therefore the terms of the written instrument have generally, in respect to the subject-matter, as by the known usage of trade, or the like, acquired a peculiar sense, distinct from the popular sense of the same words, or unless the context points out that in the particular instance, and in order to effectuate the intention of the parties, they should be understood in a peculiar sense, they are to be understood in their plain, ordinary and popular sense. * * - The word ' epidemics ' in the permit is not shown to have been used in the peculiarly medical sense attributed to it by the learned ' Coxev. Heisley, 19 Pa. St. 243. • Cockburn v. Alexander, 6 C. B. 791. ^ Schenck v. Griffin, 38 N. J. L. 462. ' Paine v. Smith, 33 Minn. 495. 2 Hall V. Janson, 4 El. & Bl. 500. ' Pohalski v. Mutual Life Ins. Co., 36 < Spartali V. Benecke, 10 C. B. 212. N. Y. Super. 234; 56 N. Y 640. » Ins. Cos. V. Wright, i Wall 456. 234 PAROL EVIDENCE. counsel for the company, nor was it used in a sense peculiar to the business of life insurance. On the contrary, it is plainly to be seen that it was used and understood in its plain, ordinary and popular sense as a familiar word in our language. No evidence of any kind from any other source was therefore admissible to charge that meaning. * * * The company evidently did not intend to stipulate solely against diseases which usually assume an epidemic character. It meant to stipulate, and did stipulate, for exemption from liability in case of death from any disease, how- ever simple and harmless, under ordinary circumstances, at home, that might by any possibility prevail in Cuba to an extent that might be called epidemic." This decision was affirmed by the Court of Appeals upon this opinion, in 56 N. Y. 640. 8. In Hill V. Hibernia Ins. Co., 10 Hun, 26, the question was of the meaning, in a fire insurance policy, of the words " standing detached." Evidence was offered to show that in the insurance business this phrase meant standing at least twenty-five feet from any other building. The evidence was rejected on the grounds, first, that the phrase was not ambiguous, and second, that " there was no offer to prove that the particular meaning claimed for the words was known to the assured." No consideration was expressed in the opinion on either ground. The decision was clearly right on the second ground, but the first ground was as clearly untenable. 9. In O'Donohue v. Leggett, — N. Y. — ; 31 N. E. Rep. 269, it was held that evidence of a trade custom making it the buyer's duty to accept or reject coffee immediately after the receipt and examination of samples is inadmissible where a contract for a sale of coffee, which was in writing, contained no mention of samples, and according to its terms the buyer could await its arrival, and inspection in bulk. 10. In Sweeney v. Thomason, 9 Lea, 359 ; S. C. 42 Am. Rep. ^"J^), an action upon a contract " to, pay eight dollars per thousand for brick in the wall," evidence of custom, short of a general custom, to ascertain the number by measurement rather than by count, was held inadmissible. The court observed : " The words and terms used in the contra.ct prima facie, at least, are not terms of art having any special signification or meaning, different from their ordinary or popular meaning. The words ' per thousand brick in the wall ' will be readily understood to mean literally what the words imply. There is no ambiguity or uncertainty in USAGE. 235 the meaning, nor is there any word used not readily understood without interpretation by experts. It would hardly be admissible to prove that by custom or usage of brick masons ' i,ooo' bricks means ' 500,' or any number less than ' 1,000.' Where it is not practicable to ascertain the number by actual count, there can be no objection to adopting as the best means of approximating the number, estimates based upon measurement. But such estimates ought ordinarily to be based upon some rule calculated to ascer- tain the actual number. That is to say, if by actual count a lineal foot of a wall be found to contain a given number of bricks, this rule may be adopted as to the remainder of the wall. But why arbitrarily assume that a lineal foot of the wall contains a number of bricks that it is conceded it does not contain ? Clearly this cannot be done unless as contended in behalf of the complainants, the words ' per thousand brick in the wall,' mean not actually ' per thousand,' but ' per thousand ' as ascertained by the rule of brick- masons above referred to." II. In Barlow V. Lambert, 28 Ala. (N. S.) 704, it was held that where a contract for the hire of a slave provided that the hirer was " to lose the negi-o's lost time," evidence of custom was not admissible to show that this phrase related to time lost by sickness or running away, and not by death. The words " are plain and unambiguous. They have but one legitimate meaning, and it was not permissible to give them a different meaning." The court admitted that this holding was in conflict with some decisions and dicta of elementary writers. In Scott v. Hartley, 126 Ind. 239, proof of usage was refused to vary the meaning of the word " net " in respect to price, and in Smith v. Clayton, 29 N. J. L. 357, to show the meaning of "grain." On a written sale of coffee, making no mention of samples, proof is inadmissible of a custom to accept or reject immediately after the receipt of samples.^ In Dickinson v. City of Poughkeepsie, 75 N. Y. 65, Hand, J., doubted the admissibility of evidence to show that by custom " earth," in a contract for excavation, did not include " hard pan." So where there was an express written warranty on a sale of butter, evidence was held inadmissible to show a local custom that the seller should not take back the butter or make any allowance, unless the purchaser examined it as soon as practi- cable, and in case of defect in quality returned it or notified the seller.^ Parol evidence was refused in Davis v. Ball, 6 Cush. 505 ; ' O'Donohue v. Leggett, 45 N. Y. St. Rep. 308. ' Marshall v. Perry, 67 Me. 78. 236 PAROL EVIDENCE. S. C. 53 Am. Dec. 53, to show the meaning of "made useful," in a contract of warranty of a set of teeth, which were returnable if not made useful on trial. The court said there was no ambiguity and excluded evidence to show that the phrase referred to a sub- sequent adjustment of the teeth. Defendant, president of a bank, addressed to W. s. letter, stating that she was authorized to draw on N. for $300, placed with N. by R. for her account, and that any amount she might wish to draw on N., " we will pay you the money for it here, with usual exchange ; " and signed it " Thos. E. Helm, Prest." Plaintiff advanced to W. $150 on her draft on N., on the faith of that letter. He^d, that parol evidence was inadmissible to show that the letter was written as an accommo- dation to W. in response to an inquiry b> the bank at her request, and not intended as a letter of credit, or authority to draw ; and that the bank could not show, by N.'s letter, written subsequently to the letter of credit, that W. did not have $300 in N.'s hands.' 12. In Greenstine v. Borchard, 50 Mich. 434; S. C. 45 Am. Rep. 51, it was held that evidence was incompetent to show a usage to employ whitewood for certain counters, contracted to be of walnut. In Fuller v. Robinson, 86 N. Y. 306 ; S. C. 40 Am. Rep. 540, an action of damages for fraudulent representa- tions by a broker employ ed to sell cigars, as to responsibility of a proposed buyer from the principal, evidence was admitted on behalf of the defendant, in order to show that the principal did not rely on the representations, that by custom and usage manu- facturers and dealers In cigars do not rely on representations by brokers as to the responsibility of purchasers. Held, error. In Corn Ex. Bank v. Nassau Bank, gi N. Y. 74; S. C. 43 Am. Rep. 655, it was held that where a bank pays a check drawn upon it to a bank in the same city, which has received it from a depositor, with a forged indorsement, evidence that by usage among banks in that city it was the duty of the former bank to examine and satisfy itself of the genuineness of the indorsernent, and to return the check immediately to the latter bank if not good, is incom- petent. So in Woodruff v. Merch. Bank, 25 Wend. 673, of a custom not to allow days of grace on a bill of exchange. So in Oelricks v. Ford, 23 How. 49, where there was an unambiguous contract for the delivery of flour at a certain price, within a speci- fied time at seller's option, evidence of a usage to put up a margin was excluded. Nelson, J., said : " It is not admissible to add to ' Pollock V. Helm, 54 Miss, i; S. C. 28 Am. Rep. 342. USAGE. 237 or engraft upon the contract new stipulations, nor to contradict those which are plain." This however was obiter, because the court held the evidence of usage insufficient. 13. On a contract to pay for plastering by the square yard, evidence was held incompetent to show a custom to include in the measurement one-half the space occupied by the windows, on the ground that it was unreasonable.* On a sale of an interest in a steamboat and an indemnity against any and all claims and demands that might arise or be brought against the steamboat, with some specified exceptions, evidence was held improper to show that the words of the contract were by custom used only to designate such debts as might be enforced against the vessel itself.^ Evidence is incompetent to show the usage of owners of vessels at a particular port to pay bills drawn by the master foi; supplies at foreign ports.* So of usage of a particular port to pay seamen's advance wages to the shipping agent, to be paid to the boarding-house keeper bringing in the seamen. " It is a custom for one of the contracting parties to put himself under the tutelage or guardianship of a particular class of men, and interfere with his right to the direct control and enjoyment of the fruits of his own labor."* On a contract to sell " stock on hand '' at a certain place, parol evidence was held inadmissible to show that only part of the stock was intended, part not being owned by the seller.' On a contract for sale of railroad ties it was held incompetent to show a custom to accept inferior grades at half price.' A custom to set off against the insured a general balance due from an insur- ance broker to the underwriter on settlement of the particular loss is invalid.' Under a charter-party to deliver " at H, or as near thereto as the ship can safely come," the custom of H. not to accept delivery elsewhere is bad.' It is inadmissible to show a custom of stock brokers to regard certificates of deposit as nego- tiable.^ ' Jordan v. Meredith, 3 Yeates, 318. • Larrowe v. Lewis, 44 Hun, 226 ; S. " Moran v. Frather. 23 Wall. 492. C. on appeal, 128 N. Y. 593. 5 Bowen v.-Stoddard, 10 Mete. 375. ' Todd v. Reid, 4 B. & Aid. 210. * Metcalf V. Weld, 14 Gray, 210. * Hayton v. Irwin, 5 C. P. Div. 130. ' Brady v. Cassidy, 104 N. Y. X47. ' East Birmingham Land Co. v. Dennis, 85 Ala. 565. 238 PAROL EVIDENCE. Sec. CHAPTER XV. Negotiable Instruments. 60. Date and issue. 61. Incapacity. 62. Parties. 63. Agency. 64. Amount. 65. Time of payment. 66, Medium and mode of payment. 67. Copditions of payment. 68. Delivery on condition. 69. Discliarge. 70. Consideration. 71. Memoranda. 72. Obscurities. 73- Guaranty. 74- Renewal. 75. Acceptance. 76. Waiver. 77. Alteration. 78. Forgery — ratification. 79- Fraud. 80. Mistake. 81. Bona fide holding. 82. Indorsers estopped. 83. Relations of parties. 84. Showing relations as to third parties. 85. Irregular indorsement before payee. 86. Orders. 87. Custom. 88. Collateral mortgage in hands of bona fiat purchaser. Sec. 60. Date and issue. Parol evidence is competent to show that a note was not issued until after its date.^ Or to show the true date.^ But not to contradict the date as against an indorsee who relied on it.^ ' Bayley v, Taber, 5 Mass. 286; S. C. ' Biggs v. Piper, 86 Tenn. 589. 4 Am. Deo. 57^ ' Huston v. Young, 33 Me. 85. Towne V. Rice, 122 Mass. 71. NEGOTIABLE INSTRUMENTS. 23& Sec. 61. Incapacity. Parol evidence is competent to show the total incapacity of the signer, as between the parties, or his personal privi- lege to avoid it, as between any parties.^ As in the case of a wife executing a note as surety for her husband against the prohibition of the statute. Voreis v. Nuss- baum, — Ind. — ; i6 L. R. Ann. 45. But not of mere drunkenness, as against an innocent holder for value.^ " The merriment of a cheerful cup, which rather revives the spirits than stupefies the reason, is no hindrance to the contract- ing of just obligations." Puffendorf, Bk. 3, ch. 6, sec. 4. And the maker is estopped from denying the capacity of the payee.^ Some cases distinguish between paper made before and paper made after inquisition and finding of incapacity, i Dan. Neg. Inst. sec. 213. .But in either case proof of ratification is competent. Ibid. Sec. 62. Parties. Parol evidence is competent to identify the parties in case of ambiguity or uncertainty. As where a note was payable to " order of myself," and signed by two, evidence was approved to show that one was payee and the other surety.^ Or to identify the drawee." But not to show ' Holland v. Barnes, 53 Ala. 83; S. C. * Adams v. King, 16 111. i6g. 25 Am. Rep. 595. Jenkins f. Bass, 88 Ky. 397; S. C. 21 Lancaster Co. Bank v. Moore, 78 Pa. Am. St. Rep. 344. St. 407; S. C. 21 Am. Rep. 24. Megginson >r. Harper, 2 Cromp. & M. Gore V. Gibson, 13.M. W. 623. 322. » State Bank v. McCoy, 69 Pa. St. 204; Bacon v. Fitch, i Root, 181. S. C. 8 Am. Rep. 246. Knight v. Jones, 21 Mich. 161. " Taylor v. Croker, 4 Esp. 187. ' Jacobs v. Benson, 39 Me. 132 ; S. C. Smith V. Marsack, 6 C. B. 486. 63 Am. Dec. 609. Drayton v. Dale, 2 B. & C. 293. U. S. v. White, 2 Hill, 59. Lane v. Krekle, 22 Iowa, 404. Cox v. Beltzhoover, 11 Mo. 142; S. C. Massey v. Bldg. Ass'n, 22 Kans. 634. 47 Am. Dec. 145. Stoutimore v. Clark, 70 Mo. 477. Newport M. M. Co. v. Starbird, 10 Vater v. Lewis, 36 Ind. 291; S. C. 10 N. H. 123; S. C. 34 Am. Dec. 145. Am. Rep. 29. McKinney v. Harter, 7 Blackf. 385; S. Griener v. Ulerey, 20 Iowa, 266. C. 43 Am. Dec. 96. Johnson v. Conklin, 119 Ind. 109. ' Cork v. Bacon, 45 Wis.'i92. Contra: Peaslee v. Robbins, 3 Mete. McCuUough v. Wainright, 14Pa.St.171. i^4- Jackson V. Sill, 11 Johns. 211. 240 PAROL EVIDENCE. that payment was to be made to any other person than the payee.' And not to supply an omitted payee, where no blank is left for his name.^ Nor to supply an entire omission to name a payee.'' But "you" may be identified.^ And a subsequent agreement that payment may be made to another is provable.^ Sec. 63. Agency. One authorized, and signing a note or bill apparently as agent, but not showing in the body of the paper an intent to bind a principal, otherwise than by the use of rnere words of description, may not evade his personal liability by parol.® But one who accepts as " agent " may show by parol that it was the intention and agreement of the parties that he was to respond only from the principal's funds, although the bill is ad- dressed to him as an individual.'^ An agent indorsing as principal may not deny his liability.* But one unauthorized, and signing apparently as agent, is himself not liable.' So of one who signs a fictitious name, or the name of a real person without authority."* But parol evidence is competent to charge an undisclosed principal." ' Draper V. Rice, 56 Iowa, 114. Contra; Means v. Swormstedt, 32 « Mcintosh V. Lytle, 23 Minn. 336 ; S. I"d 87 ; S. C. 2 Am. Kep. 330 ; the C. 37 Am. Rep. 410. -<=ase of a promise by " we," and a ■» Gibson V. Minet, i H. Bl. 569. "'^"'"^ ""^ " ^- ^' ^- "'^^'^'^'^'i '' Brown v. Oilman, 13 Mass. 158. " , J''} ^ ^"^P"^^'^ ^^\. „ ^ ^ ^ , T,7-,, e. w J A„- Hardy v. Pilcher, 57 Miss. 18 ; S. C. Douglass V. Wilkcson, 6 Wend. 637. ' ' ^' ' 34 Am. Rep. 432. * Kinney v. Flynn, 2 R. I. 319- Laflin, etc., Co. v. Sinsheimer, 48 Md. ' Shackelford v. Hooker. 54 Miss. 716. ^j, . s_ c. 30 Am. Rep 472. " Low V. Treadwell, 12 Me. 441. Contra : Robinson v. Kanawha Valley * Tannatt v. Rocky Mountain Bank, i Bank, 44 Ohio St. 441 ; S. C. 58 Am. Colo. 278 ; S. C. 9 Am. Rep. 156. Rep. 829. Sturdivant v. Hull, 59 Me. 172 ; S. C. Nat. City Bank v. Westcott, 118 N. Y. 8 Am. Rep. 409. 468 ; S. C. 16 Am. St. Rep. 771. Hypes V. Griffin, 89 111. 134 ; S. C. 31 ' Sheffield v. Ladue, 16 Minn. 388 ; Am. Rep. 71. S. C. 10 Am. Rep. 145. Burlingame v. Brewster, 79 111. 515 ; '» Bartlett v. Tucker, 104 Mass. 336 ; S. C. 22 Am. Rep. 177. S. C. 6 Am. Rep. 240. Liebscher v. Kraus, 74 Wis. 387. " Bank v. Bank, 5 Wheat, 326. Tarver v. Garlington, 27 S. C. 107 Hager v. Rice, 4 Colo. 90 ; S. C. 34 S. C. 13 Am. St. Rep. 628. Am. Rep. 68. NEGOTIABLE INSTRUMENTS. 241 1. In Pierson v. Atlantic National Bank, TJ N. Y. 304, there was a loan upon the individual notes of defendant's cashier ; the checks for the loan were made payable to his order, and the entries in the lender's book were of a loan to him. It was held that this was not conclusive, but that parol evidence was compe- tent to show that the loan was to the defendant. Citing Cole- man V. Bank of Elmira, 53 N. Y. 388 ; Van Leuven v. Bank of Kingston, 54 N. Y. 671. 2. Stackpole v. Arnold, II Mass. 27; S. C. 6 Am. Dec. 150, to the contrary obiter on this point, is overruled and generally dis- approved, and the obiter expressions in regard to negotiable paper, in Webster v. Wray, 19 Neb. 558; S. C. 56 Am. Rep. 754, myst be regarded as opposed to the weight of authority, founded as they are mainly on the Massachusetts cases. And when the character of the signing or of the language in the body is ambiguous, parol evidence is competent to show whether it was as agent or principal.' 3. As in Carpenter v. Farnsworth, 106 Mass. 561 ; S. C. 8 Am. Rep. 360, where a check had " ^Etna Mills" printed on the mar- gin, was signed " T. D. F., Treasurer," and was given for debt of the mills, it was held not to bind F. personally. The court said, by Gray, J.: "The court has always laid hold of any indication on the face of the paper, however informally expressed, to enable it to carry out the intention of the parties." And so in Hough- ton V. First Nat. Bank, 26 Wis. 663 ; S. C. 7 Am. Rep. 107, where a cashier of a bank, to enable the payee to raise money to take up paper held by the bank, indorsed his name on a note not be- longing to the bank as " G. B., cas.," it was held to bind the bank, and obiter the court said that such would be the effect even if the indorsement had been purely for accommodation. So in Bean v. Pioneer Mining Co., 66 Cal. 451 ; S. C. 56 Am. Rep. 106, a note phrased "we promise," and signed " Pioneer Mining Com- pany, John E. Mason, Superintendent," upon parol proof was ' Haite v. Pierce, 32 Md. 327; S. C. 3 Martin v. Smith, 65 Miss. ;:. Am. Rep. 139. Hager v. Rice, 4 Colo, go; S. C. 34 Laflin, etc., Co. v. Sinslieimer, 48 Md. Am. Rep. 68. 411; S. C. 30 Am. Rep. 472. McClellan v. Reynolds, 49 Mo. 314. Schmittler v. Simon, 114 N. Y. 176; S. Pratt v. Beaupre, 13 Minn. 190. C. II Am. St. Rep. 621 (draft ac- Vater v. Lewis,'36 Ind. 288; S. C. 10 cepted by " S. , executor " ). Am. Rep. 29. Richmond, etc., R. Co. v. Snead, 19 Bean v. Pioneer Min. Co., 66 Cal. 451; Gratt. 354. S. C. 56 Am. Rep. 106. 242 PAROL EVIDENCE. held to be the note of the company alone, and to the same effect is Liebsqher v. Kraus. 74 Wis. 387 ; S. C. 17 Am. St. Rep. 171. 4. In Reeve v. First National Bank of Glassboro, New Jer- sey Court of Errors and Appeals, the court said : " The cases in which the liability of parties to paper similar to this is determined are not uniform in their results. , Indeed, great contrariety of views can be found in the decisions upon this question. A de- tailed examination of those cases would not result in much profit. The result of the best-considered decisions is this : Where noth- ing appears in the body of a note to indicate the maker, and the note is signed by a corporate name, under which name appears the name of an officer of the company, with his corporate official title affixed thereto, in such case the note is taken conclusively to be that of the corporation. Where however a note drawn in a similar form, except as -to the signatures, is subscribed by the name of an officer of the corporation, to which name is affixed his title as an officer of a particular corporation, the result is not the same. In respect to notes drawn in the last-mentioned form, the courts in most of the states hold that there is an ambiguity arising out of this manner of coupling the names of the natural person and of the corporation It is therefore open to the par- ties to introduce extrinsic testimony to disclose facts from which it can be concluded which of the parties should be regarded as the maker. In this state the rule is that a note drawn in this form is prima facie the note of the person signing and not the note of the corporation; but this is only a disputable presump- tion, and upon the ground of an existing ambiguity concerning the maker, evidence is admissible to show that it was intended to be the note of the corporation, which evidence can of course be met with counter-evidence of the same character. This rule was definitely settled in the case of Kean v. Davis, 21 N. J. L. 683, 47 Am. Dec. 182. In this case a note was signed, 'John Kean, Prest. F. & S. S. R. R. Co.' It was held to he prima facie the note of Kean, but it was held that parol evidence might be introduced to show whether it feally was the personal note of the officer or was the note of the railroad company. If therefore the present notes had been signed, ' J. Price Warrick, President of the Warrick Glass Works,' it, in the absence of parol testimony to show a contrary intention, would be regarded as the note of Warrick. As the notes are signed with the name of the corpo- ■ ration, followed by the words, 'J. Price Warrick, Pres.,' they are NEGOriABLE INSTKITME^TS. 243 taken to be corporation paper. This conclusion seems to rest upon rational ground. The name of the corporation signed first stands as a principal and that of the officer as agent. The name of a corporation so placed, raises the implication of a corporate liability. To so place it requires the hand of an agent. The name of an officer of such corporation, to which name the official title is appended, put beneath the corporate n4me, implies the relation of principal and agent. It means that inasmuch as every corporate act must be done by a natural person, this person is the agent by whose hand the corporation did the particular act. This form of signature is just as significant in respect to the notes in question as if the name the ' Warrick Glass Works ' had been written ' Per Warrick, Agent.' The following are cases in which notes in similar form to those now in suit have been held to be solely the notes of the corporation whose name first appeared, followed by the name of an officer. -Bean v Pioneer Min, Co., 66 Cal. 451, 66 Am. Rep. 106 ; Atkins V, Brown, 59 Me 90; Castle v. Belfast Foundry Co., 72 Me. 167; Miller v. Roach, 150 Mass 140, 6 L. R. A. 71 ; Draper v. Massa- chusetts Steam-Heat Co., 5 Allen, 388 ; Liebscher v. Kraus, 74 Wis. 387, 5 L. R. A.496.-1 5. In Mechanics Bank v. Bank of Columbia, 5 Wheat. 326, such evidence was admitted in respect to a check which was apparently unambiguous, being signed " W. P., Jr." and drawn to the order of "P. H. M." without words of description in either case. John- son, J., .said: "It is by no means true, as was contended in argument that the acts of agents derive their validity from pro- fessing, on the face of them, to have been done in the exercise of their agency. In the more solemn exercise of derivative powers, as applied to the execution of instruments known to the common law, rules of form have been prescribed. But in the diversified exercise of the duties of a general agent the liability of the princi- pal depends upon the facts: (i) that the act was done in the exercise and (2) within the limits of the powers delegated. These facts are necessarily inquirable into by a court and jury; and this inquiry is not confined to written instruments (to which alone the principle contended for could apply), but to any act, with or without writing, within the scope of the power or confidence reposed in the agent ; as for instance, in the case of money credited in the books of a teller, or proved to have been deposited ' See Liebschaur v. Kraus, 74 Wis. 587. Miller v. Roach, 150 Mass. 340. 244 PAROL EVIDENCE. with him, though he omits to credit it." Proof was allowed that the check was signed by W. P., Jr., as cashier, and that it was the check of the bank. This case goes to the greatest extreme ot any.' Authority to an agent to make or indorse a note may be given by parol. ^ Sec. 64. Amount. Parol evidence is not competent to supply an entire omission of the amount in the body.^ Nor to show that marginal figures and not the words indicated the true amount." Evidence is not admissible to change the specified rate of interest.® But evidence is competent to show the intent as to interest where it is ambiguous.^ Evidence is inadmissible to contradict the amount.' ^- Sec. 65. Time of payment. Parol evidence is competent to show an agreement to extend the time of payment as between the parties.* In Bradshaw v. Combs, 102 111. 428, an indorsement was made on a note, " it is agreed by the parties to this note that the interest shall be at the rate of ten per cent, until paid." Parol evidence was allowed to show that at the same time it was orally agreed that the time of payment should be extended one year, and that the promise to pay ten per cent, interest instead of eight formed the consideration. ' See also Hood v. Hallenbeck, 7 Hun, * Smith v. Smith, i R. I. 398 ; S. C. 53 367. Am. Dec. 652. See 15 Alb. Law Journ. 409; 16 id. Williamson v. Smith, I Cold, i ; S. C. 117. 345- 78 Am. Dec. 478. Wharton Agency, 290. ' Davis v. Stout, 126 Irid. 12 ; 25 N. E. Story Agency, sees 155,^75. Rep. 862. Pars. Notes, go. ' Payson v. Lamson, 134 Mass. 593 ; S. Story Notes sec. 68. C. 45 Am. Rep. 348. Edw. Notes, 83. ' Beard v. White, i Ala. ( N. S.) 436. Dan. Neg. Inst. sec. 418. Carter v. Hamilton, 11 Barb. 147. ^ Dan. Neg. Inst. sec. 209. Downs v. Webster, Brayt. 79. Brown v. Bookstaver, — 111. — ; 31 N. Gazoway v. Moore, Harper, 401. E. Rep. 17. Eaves v. Henderson, 17 Wend. 190. * Brown v. Beebe, i D. Chip. 227 ; S. C. " Ferguson v. Hill, 3 Stew. 485 ; S. C. 21 6 Am. pec. 728. Am. Dec. 641. HoUen V. Davis, 59 Iowa, 444 ; S. C. 44 Blake v. Coleman, 22 Wis. 415 ; S. C. Am. Rep. 688. 99 Am. Dec. 53. Solomons v. Jones, 3 Brev. 54. negotiable; instruments. 245 But evidence is not admissible to show an originally-intended different time of payment.' Where the note does not clearly specify a time of payment it may be supplied by parol. As where the time of payment was specified in a memorandum at the bottom of the note, evidence was admitted to show the circumstances in which it was made.' So where the time wa.= " months."* Or "seventy-five after date." * But an entire omission to state a time of payment ren- ders it payable on demand and may not be supplied by parol.' Parol evidence is inadmissible to show that a note absolute on its face and delivered absolutely was not to be paid until the happening of a certain contingency.* Sec. 66. Mediiim and mode of payment. Parol evidence is competent to explain an ambiguity in the character of the funds in which the paper is payable. As to show the meaning of " Canada money." ^ But not to show that " interest from date at the rate of eight per cent, per annum " was to be paid annually.' Nor to show that a note pay- able in lawful money was to be paid in silver.' Nor that " dollars" permitted paper currency, notes or goods, or anything but lawful coin of the United States." Nor that "currency of the State" warranted anything but gold, silver, or notes of the State bank." Nor that it was to be paid out of a particular fund or estate." But in respect to a note made in Alabama, during the civil war, ' Thompson v. Ketcham, 8 Johns, igo ; * Koehring v. Muemminghoii, 6i Mo. S. C. 5 Am. Dec. 332. 403; S. C. 21 Am. Rep. 402. Campbell v. Upshaw, 7 Humph. 185 ; » Alsop v. Goodwin, 1 Root, 196. S. C. 46 Am. Dec.75. '» Thorington v. Smith, 8 Wall 12. Stucksleger y. Smith, 27 Iowa, 286. Noe v. Hodges, 3 Humph. 162. Dan. Neg. Inst. sec. 80. Stewart v. Salamon, 94 U. S. 434. Doss V. Peterson, 82 Ala. 253. Hair v. LaBrouse, lo Ala. (N. S.) 548. ' Haywood v. Perrin, 10 Pick. 228. Lohman v. Crouch, 19 Gratt. 331. Stowe V. Merrill 77 Me. 550. Lang^nberger v. Krceger, 48 Cal. 147. ' Union Bank v Meeker, 4 La. Ann. 1S9; Com. v. Beaumarchais, 3 Call, I22. S. C. 50 Am. Dec. 559. Bradley v. Anderson, 5 Vt. 152. * Baykin v. Bank of Mobile, 72 Ala. 262; " Cockrill v. Kirkpatrick, 9 Mo. 697. S. C. 47 Am. Rep. 408. " Adams v. Wilson, 12 Mete. 138. ' Thompson v. Ketcham, 8 Johns. 190 ; Brown v. Spofford, 95 U. S. 482. S. C. 5 Am. Dec. 332. Conner v. Clark, 12 Cal. 168 ; S, C. 73 « Foy V. Blackstone, 31 111, 538 ; S. C. 83 Am. Dec. 529. Am. Dec. 246. Jones v. Pac. etc. Co. 13 Nev. 359 ; S. ' Thompson v. Sloan, 23 Wend. 71 ; S. C. 29 Am. Rep. 308 C. 35 Am. Dec. 546. Ockington v. Law, 66 Me. 551. 246 PAROL EVIDENCE. parol evidence was held admissible to show that Confederate money was intended. " It simply explains an ambiguity," said Chief Justice Chase.* But such a note payable in " specie " may be paid only in United States currency.^ A subsequent agreement that payment may be made to another' than the payee is provable.' In Rugland v. Thompson, — Minn. — ; 5 1 N. W. Rep. 604, the payee and holder of a promissory note having accepted from the maker certain persdnal property and services, it was held that proof is admissible that it was orally agreed, when the note was made, that whatever should be thus supplied to the payee should be applied in payment on the note ; such evidence being admis- sible, not to vary the agreement expressed in the note, but only as bearing upon and characterizing the subsequent delivery and acceptance of the property and services. Sec. 67. Conditions of payment. Parol evidence is incompetent to show that a note was payable only upon a condition, as against innocent third parties.* I. Even as between immediate parties parol evidence is inad- missible to show that payment of a note was conditional.' In Ellis V. Hamilton, 4 Sneed, 512, it was said: "The doctrine is well established that in an action on a promissory note or bill of exchange, the defendant will not be allowed to give evidence of a parol agreement between him and the plaintiff, at the time of ' Thorington v. Smith, 8 Wall. 12. West v. Kelly, ig Ala. 353; S. C 54 ' Glover V. Robbins, 49 Ala. 219 ; S. C. Am. Dec. 192. ' Lowv. Treadwell, 12 Me. 441. Walker v. Crawford, 56 111. 444; S. C. 20 Am. Rep. 272. " 8 Am. Rep, 701. * Foster v. Clifford, 44 Wis. 569; S. C. Penny v. Graves. 12 111. 287. 28 Am. Rep. 603. Dale v. Pope, 4 Litt. 166. Martin's Exrs. v. Lewis' Exrs. 30 Brown v. Hull, i Denio, 400. Gratt. 672; S. C. 32 Am. Rep. 682. Holt v. Moore, 5 Ala. (N. S.) 521. Erwin v. Saunders, i Cow. 249; S. C. Sears v. Wright, 24 Me. 278. 13 Am. Dec. 520. Jones v. Shaw 67 Mo. 667. Hatch V. Hyde, 14 Vt. 25; S. C. 39 Wayland Univ. v. Boorman, 56 Wis. Am. Dec. 203. 660. Adams v. Wilson, 12 Met. 138; S. C. • Walker v. Crawford, 56 111. 444; S. C. 45 Am. Dec. 240. 8 Am. Rep. 701. Allen V. Furbish, 4 Gray, 504; S. C. 64 Foy v. Blackstone, 31 111. 538; S. C. 83 Am. Dec. 87. Am. Dec. 246. Ely V Kilborn, 5 Denio, 514 Osborne v, Taylor, 58 Conn. 439. NEGOTIABLE INSTRUMENTS. 247 making the note, that it should be renewed, and that payment should not be demanded on its becoming due ; or that a note pay- able on demand was intended by the parties to be payable on a contingency ; or that a note payable on a certain day was intended to be payable on some other day ; or that it was to be paid out of a particular fund ; or that it should be paid in any other mode than is imported on its face." In an action on a note of $400, parol evidence was held inadmissible to show that the plaintiff orally agreed to sell defendant land in consideration of an annuity of $40 for life, that she deeded the land, and he gave the note in payment.* Parol evidence of an agreement between payee and drawer of a bill that the drawer was not to be liable is inadmis- sible.^ And so as to the liability of the maker or any other party.* In Thompson v. Hall, 45 Barb. 214, defendant Hall had signed a note as surety for defendant Thompson, at the request of plain- tiff, the mother of the principal debtor. Evidence was held inadmissible to show that he signed only on the condition, assented to by the plaintiff, that on maturity the plaintiff would collect it promptly. 2. The Supreme Court of Arizona very recently held* that in an action on a promissory note, parol evidence is inadmissible to show an oral agreement that the payee would save the sureties harmless, and satisfy the note out of collateral securities deposited by the principals. The court said : " The written contract (the note) was that the makers would pay the note at the time ■expressed therein, without qualification or condition. When suit is brought, answer is filed, in substance, that the payee has no right to take judgnfient against the sureties at least, if we concede they were sureties, because plaintiff below agreed by parol, at the time these defendants signed the note, to use collateral security, which it held, or claimed to have, at the time defendants signed the notes as sureties. In other words, part of the contract was in writing, and part was by parol, or there was a contemporaneous ' Coapstick v. Bosworth, 121 Ind. 6. » Wright v. Remington, 41 N. J. L. 48; ' Cummings v. Kent, 44 Ohio St. 92; S. C. 32 Am. Rep. 180. S. C. 58 Am. Rep. 796; distinguishing Dolson v. DeGanahl, 70 Tex. 621. Morris v. Faurot, 21 Ohio St. 155; S. C. Davy v. Kelley, 66 Wis. 455. 8 Am. Rep. 45, and Dye v. Scott, 35 Mason v. Mason, 72 Iowa, 457. Ohio St. 194; S. C. 35 Am. Rep. 604, Bishop v. Dillard, 49 Ark. 285. cases of agreements between indorser and Rendell v. Harriman, 75 Me. 497. indorsee, and citing Martin \.Cole, 104' Davis v. England, 141 Mass. 587. U.S. 30; Davis V.Randall, ics Mass. * Stewart v. Alberquerque Nat. Bank, 547; S. C. 15 Am. Rep. 146, etc. Ariz. ; 30 Pac. Rep. 303. 248 PAROL EVIDENCE. collateral parol agreement. The parol agreement varies, if it does not contradict, the written undertaking. On the face of the written undertaking (the note) there must be payment or judg- ment. ' It is a firmly settled principle that parol evidence of an oral agreement alleged to have been made at the time of the drawing, making, or indorsing of a bill or note cannot be per- mitted to vary, qualify, or contradict, or add to or subtract from the absolute terms of the written contract.' 2 Pars. Bills & N. SOI ; Specht v. Howard, 16 Wall. 564; Forsythe v. Kimball, 91 U. S. 294. The rule, in the language of Greenleaf, is : ' The rule, briefly expressed, is, parol contemporaneous evidence is inadmis- sible to contradict or vary the terms of a valid written instrument.' I Greenl. Ev. 351. The rule is elementary," etc. ' Evidence has been held inadmissible to show that the payee promised to procure another signer, and to collect and apply certain subscriptions.* Daniel says (Neg. Inst. § 80): "Thus where a note is pay- able on demand, it cannot be shown by verbal testimony that it was agreed that it should not be paid till after the decease of the testator; nor until after sale of the maker's estates; nor until a certain account should be adjusted and credited on its face ; nor until certain premises were delivered up ; nor until a dividend of a bankrupt's assets should have been made ; nor until the amount was collected from certain sources ; nor until a certain draft was received. Nor can it be shown verbally that demand of a post- dated check was not to made at maturity ; nor * * * that there was any agreement to prolong or vary the time of payment, specified in the instrument, by taking part payment and waiting for the residue, by receiving payment in installments or otherwise than as the instrument itself declares. * * * Nor that it was not to be paid in case a certain verdict was obtained, or in any other event." But it has been held that a surety may show the agreement of the holder not to look to him, and this is put on the ground of failure of consideration." Sec. 68. Delivery on condition. But the delivery of a note may be conditional ; as to be operative only upon the occurrence of a certain event.^ ' Clanin v. Esterly H.Co. Mich. . ' Sweet, v. Stevens. 7 R. I. 375. ' Kulenkamp v. Groff, 71 Mich. 675; S. Bernhardt v. Brunner, 4 Bosw. 528. C. 15 Am, St. Rep. 283. NEGOTIABLE INSTRUMENTS. 249 Thus it may be given in escrow to a third person, as between the original parties.' Or even to the payee himself.^ In Benton V. Martin, 52 N. Y. 574, a duplicate, draft was issued for the lost original, the drawer imposing the condition that he would be responsible for any past laches. Folger, J., said : " Instruments not under seal may be delivered to the one to whom on their face they are made payable, or who by their tenus is entitled to some interest or benefit under them, upon conditions the observance of which is essential to their validity. And the annexing of such conditions to the delivery is not an oral contradiction of the written obligation, though negotiable, as between the parties, or others having notice. It needs a delivery to make the obligation operative at all, and the effect of the delivery and the extent of the operation of the instrument may be limited by the conditions with which delivery is made. And so also, as between the orig- inal parties and others having notice, the want of consideration may be shown." Mr. Daniel says of this doctrine, " unless the non-fulfillment of the condition goes to the failure of considera- tion this would seem to trench upon fixed principles of law. * * * Evidence is admissible to deny the receipt of value, but not to vary the engagement." (Neg. Inst. § 8i«.) And he makes the same criticism on Bissinger v. Guiteman, 6 Heisk, 277, where it was held that parol evidence was admissible, that where a note was executed it was agreed that it should be held for noth- ing on the happening of a certain event. So in McFarland v. Sikes, 54 Conn. 250; S. C. i Am. St. Rep. iii, parol evidence was admitted to show that the note was delivered by the defend- ant to the plaintiff" on condition that it should be returned to the defendant on a certain day, if demanded, and that it was so demanded, and delivery was refused. The court approved Ben- ton V. Martin, supra, observing: "Such evidence does not con- tradict the note or seek to vary its terms. It merely goes to- the point of its non-delivery." And where one signs as surety he may deliver on condition that an aciditional surety is obtained.* In Miller v. Gamble, 4 Barb. 146, parol evidence was allowed to show that the defendant signed on condition that another should sign above his signature.* ' Couch' V. Meeker, 2 Conn. 302. Goff v. Bankston, 35 Miss. 518, the Taylor v. Thomas, 13 Kans. 217. case of a sealed note. Alexander V. Wilkes, 11 Lea, 221. * Contra as to third parties : Ward v. ' Benton v. Martin, 52 N. Y. 574. . Hackett, 30 Minn. 150. ' Westman v. Krumweide, 30 Minn. 313. 250 PAROL EVIDENCE. In Brown v. Eastern Slate Co. 134 Mass. 590, a note was given by a corporation in pursuance of a written agreement, upon the oral condition that there was to be no individual liability, under the statutes, on the part of the officers executing it. Judgment was obtained against all the parties to the note, but in equity the officers were relieved upon proof of the condition. Holmes, J., ^ said: "But the rule excluding evidence of oral agreements to vary a writing goes no farther than the writing goes. And at most, the writing only expresses the obligation of the party sign- ing it. * * * And the most obvious and natural view is that the promise is the only thing which the writing has undertaken •or purports to express, either in words or by legal implication. Certainly the writing does not extend to the remedies which the law will furnish for the collection of damages, even from the promissor himself," etc. Sec. 69. Discharge. As between the original parties a note may be shown to have been discharged by the performance of an oral -agreement. As where it was agreed that a note payable in money might be paid in merchandise, and was so paid.' In People v. Universal Life Ins. Co. 21 Weekly Dig. 112, B. petitioned the court for an -order requiring the receiver of an insolvent insurance company to deliver to him certain paid-up policies of insurance which he claimed to own, and which were in the hands of said receiver. The receiver resisted the application upon the ground that such policies had been held by the company as collateral security for the payment of a note made by B. Held, that B. might show, by parol evidence, that the money for which the note was given was not a loan, but an advance for services to be performed, which had been so performed. So where a debtor was garnished and executed a note for the debt, evidence was admitted to show that at the time of the execution, it was orally agreed that if judg- ment should be recovered against the debtor in the garnishment proceedings, and paid, the amount should be deducted from the note, and that it was so recovered and paid.^ This was put on the ground of partial failure of consideration. So where one paid ' Buchanon V. Adams, 49 N. J. L. 636; Crosman v. Fuller, 17 Pick. 171, S. C. 60 Am. Rep. 666. ' Peterson v. Johnson, 22 Wis. 21; S. C. Howard v. Stratton, 64 Cal. 487. 94 Am. Dec. 581. NEGOTIABLE INSTRUMENTS. 251 a note which was secured by a mortgage on a farm which he had purchased from the maker and mortgagor, the latter was allowed to prove the grantee's oral assumption of the note and mortgage as part of the purchase price.' Sec. 70. Consideration. As between the immediate parties, or as to subsequent parties with previous notice, want of consideration, or failure in whole or in part, or wrongful diversion of the note from its purpose, may be shown by parol.* So where a note was executed for future services, parol evi- dence was allowed of the contemporaneous condition that the maker would not accept the services unless the payee brought a recommendation from a certain third person, that it was not pro- duced, and thcit the services were never accepted nor rendered.' But not as against an accommodation indorser, who has been compelled to pay the paper.* Nor may an accommodation indorser, when sued, set this up as a defense.* So as between the parties, a note executed on account of a demand previously vol- untarily released under seal, in consideration of part payment, is not enforceable.* And one who has given his note to settle a claim for injury to hired property may show, as between himself and the payee, that he was not liable for that injury.' Oral evidence is admissible to show that the use of an accommodation note was restricted by the parties thereto.* The foregding doctrine as to failure of consideration has been extended to subsequent parties who had notice thereof before acquiring their rights. Thus in Braly v. Henry, 71 Cal. 481 ; S. C. 60 Am. Rep. 543, in an action by an indorsee on a promissory note given for goods sold, parol evidence was admitted to show ' Fall V. Glover, Neb. ; 52 N. First Nat. Bk. v. Nugen, 99 Ind. 160. W. Rep. 168. Maltz v. Fletcher, 52 Mich. 484. ' Stackpole v. Arnold, 11 Mass. 27; S. ' Corbin v. Sistrunk, 19 Ala. (N. S.) 203. C. 6 Am. Dec. 150. * Foster v. Clifford, 44 Wis. 569; S. G. Folsora V. Mussey, 8 Greenl. 400; S. C. z8 Am. Rep. 603. 23 Am. Dec. 522. ' Gillespie v. Torrance, 25 N. Y. 306. West V. Kelly, 19 Ala. 353; S. C. 54 " Ingersoll v. Martin, 58 Md. 67; S. C. Am. Dec. 192. 42 Am. Rep. 322. Scott V. Sweet, 2 G. Greene, 224. ' Guijning v. Royal, 59 Miss. 45; S. C. Lewis V. Gray, i Mass. 297; S. C. 2 42 Am. Rep. 350. Am. Dec. 21. * Western Nat. Bank v. Wood (Sup. Ct.) Ramsey v. Young, 69 Ala. 158. ig N. Y. Supp. 8i. 252 PAROL EVIDENCE. that the parties not knowing the exact quantity of the goods, agreed that if they fell short of the estimated quantity a corre- sponding deduction should be made from the note; that they did fall short ; and that the plaintiff had notice of these facts before he acquired the note. The court put this on the theory of a con- temporaneous oral agreement, but it seems hardly consistent with that doctrine, for the oral matter was manifestly contradictory of the agreement, and can hardly become admissible except on the theory of failure of consideration. Parol evidence is competent, between the original parties, to show that the consideration was illegal.' And to show the real consideration and purpose.^ And to show that it was fraudulent.* And to show an additional collateral consideration, as that certain lawsuits were to be discontinued.* And to show an agreement that the maker was at liberty to return the goods for which it was given.* But not to show that it was not to be enforced if the horse for v/hich it was given should die before the end of the season.^ And to show that it was intended as a mere receipt.' In Brook V. Latimer, 44 Kans. 431 ; S. C. 21 Am. St. Rep. 292, it was held that parol evidence is admissible to show that a prom- issory note for the payment of $10,000, executed by a daughter to her father, who is living, payable on demand, was executed by the daughter and received by the parent as a mere receipt or memorandum of an advancement made by the parent to the child, with the mutual understanding that payment would never be enforced. The court said: "We do not deem the admission of evidence tending to show that a promissory note, absolute by its ' Buck V. First Nat. Bank, 27 Mich. 293; Wolford v. Powers, 85 Ind. 294; S. C S. C. 15 Am. Rep. 189. 44 Am. Rep. 16. Woods V. Armstrong, 54 Ala. 150; S. Martin v. Stubbings, 126 III. 387; S. C. 25 Am. Rep. 671. C. 9 Am. St. Rep. 620. Gill V. Morris, li Heisk, 614: S. C. 27 ' Harris v. Alcock, 10' G. & J. 226; S. C. Am. Rep. 744. 32 Am. Dec. 158. Eldred v. Malloy, 2 Colo. 320; S. C. 25 Larrabee v. Fairbanks, 24 Me. 363; S. Am. Rep. 752. C. 41 Am. Dec. 389. Donley v. Tindall, 32 Tex. 43; S. G Bookstaver v. Glenny, 3 Thomp. & 5 Am. Rep. 234. Cook ( N. Y. Supr.) 248. Henderson V. Palmer, 71 111. 579; S. C. 'Barnes v. Shelton, Harper, 33; S. C. 22 Am. Rep. 117. 23 Am. Dec. 642. .Contra (and questionahle) : Bibb v. • Gatlin v. Kilpatrick. i Car. L. 534; S. Hitchcock, 49 Ala. 468; S. C. 20 Am. C. 6 Am. Dec. 557. Rep. 288. ' Smith v. Rowley, 34 N. Y. 367. ' Fort V. Orndoff, 7 Heisk. 167. Contra : City Bank v. Adams, 45 Me. Miller v. McKenzie, 95 N. V. 575. 455- NEGOTIABLE INSTRUMENTS. 253 express terms, is a mere evidence of an advancement by a parent to a child, to be a violation of that rule of evidence that forbids a written instrument to be varied or contradicted by paipl. The numerous reported cases, including deeds that recite a moneyed consideration, bonds under seal and promissory notes in absolute terms, justify the admission of such evidence, on the principle that the consideration recited in the instrument is always subject to judicial inquiry. This court is usually liberal in the application of the rule that permits such inquiry. In almosj every reported case in which the controlling question was whether or not such parol evidence was admissible to show that some written instru- ment of indebtedness taken by a parent from a child was in fact a mere receipt or memorandum of an advancement, it is held that such evidence should be received, This case however differs from all the reported cases that have been cited, or that we have exam- ined, in this respect. The parent that made the advancement is still alive.- and is now insisting that the memorandum or receipt showing the atnount of the advancement at the time it was made is both prima facie and conclusive evidence of a debt." But evidence is inadmissible that defendants signed the note not intending it to be an obligation to pay a definite sum of money, but as an undertaking to furnish plaintiff with a horse, and that the note was signed on plaintiff's express representation that it was a mere matter of form and not an obligation.* And in like manner it has been held incompetent to show that it was intended as a mere receipt for money to be lent for the payee.^ A note not valid on its face may not be made valid by the addition of a parol agreement. As a parol charge of a wife's separate estate.* Evidence is admissible to show whether a note was originally intended or subsequently transferred as payment of a debt, or only as collateral security.* Evidence is admissible to show that a note was given in consideration of the surrender and cancellation of old notes." The illegality of the consideration may be shown, although the note is secured by a mortgage. Thus in Mofifitt v. Wilson, ' Ziegler v. McFarland, Pa. ; 23 ' Kimm v. Weippert, 46 Mo. 532; S. C. Atl. Rep. 1045. 2 Am. Rep. 541. ^ Shaw V. Shaw, 50 Me. 94; S. C. 7g ' Maneely v. M'Gee, 6 Mass. 142. Am. Dec. 605. 2 Dan. Neg. Inst. § 1259. Billings V. Billings, 10 Cush. 178. Noel v. Murray, 3 Kern. 169. Dickson v. Harris, 60 Iowa, 727. » Chrysler v. Renois, 43 N. Y. 209. 254 PAROL EVIDENCE. ' Supreme Court of California,' plaintiff agreed orally to sell to defendant certain lands, part of which plaintiff had filed upon under the " Homestead Act," but for which he had not yet made final proof or payment. Afterwards plaintiff conveyed to defend- ant all the lands except the homestead tract, and defendant executed to plaintiff a note and mortgage for a balance of the purchase money. Held, in an action to foreclose the mortgage, that the contract was entire, and, being void because it embraced the homestead lands, the mortgage executed in pursuance of it could not be enforced The court said: " That a contract to sell and convey lands taken up under the homestead laws, made before final proof, is illegal and void is not disputed. U. S. Rev. St § 2262. The learned counsel for appellant contend however that the oral agreement was void under § 1624, and subd. 5, Civil Code, as well as illegal under subdivisions i, 2, § 1667, Id. Upon these propositions they Contend that as all the negotiations, including the offer of defendant to purchase, and the acceptance ' of the offer by plaintiff, were oral, the execution of the deed by plaintiff, and of the note and mortgage by defendant on the 5th of March, 1887, not only eliminated the illegal element from the agreement, but that the execution of these instruments consti- tuted the only contract between the parties, and superseded the oral negotiations or stipulations concerning the matter or subject referred to which preceded or accompanied their execution, and that what the subject-matter of the contract was is to be ascer- tained from the deed and mortgage. Citing Civil Code, § 1625 There is no doubt of the correctness of counsel's contention in a case to which section 1625 of the Civil Code applies; but that section has never been construed to prevent a defendant who has been sued on a promissory note, whether secured by mortgage or not, to show by parol evidence a want or failure or illegality of consideration." Sec. 71. Memoranda. Parol evidence is admissible to show when, by whom, and in what circumstances a memorandum on a note was made.* ' 30 Pac. Rep. 1022. Makepeace v. Harvard College, 10 Pick. ' Bay V. Shrader, 50 Miss. 330. 298. NEGOTIABLE INSTRUMENTS. 255- If the memorandum is established as part of the contract, parol evidence is inadmissible to vary it.* If repugnant and contradictory or indefinite, parol evidence is inadmissible to annex it.^ Sec. 112. Obscurities. Parol evidence is admissible to explain obscurities in the writing, whether intrinsic or the result of wear or accident.* Sec. 73. Guaranty. An oral promise that a note is good and will be paid when due, made by the owner on a transfer of the note for value, is valid.* Sec. 74. Renewal. • Parol evidence is inadmissible to prove a contempo- raneous agreement to renew ; but otherwise if subsequent and upon a consideration, as between the original parties.* Sec. 75. Acceptance. A bill may be orally accepted in the absence of a contrary statutory provision.* Sec 76. Waiver. Parol evidence is competent to shoAY a waiver by an indorser of presentment, demand, protest and notice, or to show any other excuse for the omission.' ' Heywood v Perrin, lo Pick. 228. Mills Co. Nat. Bank v. Perry. 72 Iowa. ' Way V. Batchelder, 129 Mass. 361. 15 ; S. C. 2 Am. St. Rep. 228. Krouskop V. Shontz, 51 Wis. 204 ; S. Heist v. Hart, 73 Pa. St. 286. C 37 Am. Rep. 817. McGrath v. Barnes, 13 S. C. 328 ; S. C. ' Paine v. Ringold. 43 Mich, 341. 36 Am. Rep. 687. County of DesMoines v. Hinkley, 62 Ellis v. Hamilton, 4 Sneed, 512. Iowa 642 • Fairlie v. Herring, 11 Moore, 520. * Milks V, Rich, 80 N.,Y. 269; S. C. Ward v. Allen, 2 Mete. 53. 36 Am, Rep, 615. Clarke v. Gordon, 3 Rich. 311. King V, Summitt, 73 Ind. 312 ; S. C. Jarvis v. Wilson, 46 Conn. 90 ; S. C. 33 38 Am. Rep. 145. Am. Rep 18. • Grafton Bank v. Woodward, 5N. H. 99 ■■ Dan. Neg Inst. 4th ed. sec. 1093. Fleming V. Gilbert, 3 Johns 528. 256 PAROL EVIDENCE. As by proof of the indorser's promise, at the time of indorsing, to pay the note.^ Or after dishonor." Or to save the expense of protest.' Or by proof that the indorser has been fully secured for the payment.* Or that he threw the holder off his guard.* Or in the case of a check that the drawer had no funds at the bank.* And this may not be countervailed by proof of the willingness of the bank to pay.' , But parol evidence is not admissible to show a contempora- neous waiver, by a guarantor, of the prior exhausting of the remedies against the principal.^ Nor to vary the terms of a "waiver. Thus where there was a " waiver " of " notice of protest," oral evidence was held inadmissible to add a waiver of demand of payment. In this case the court said : " There could be no doubt, I think, if this were a contract, that evidence of the colloquium which led to the entry would be inadmissible, especially for the purpose of modifying or changing the effect of what was expressed in the writing. Assume that the parties conversed about a waiver of demand and notice, and finally reduced their agreement to writ- ing, which reads, ' Notice of protest waived by me; ' if this were a contract upon sufficient consideration, it would scarcely be pre- tended that the plaintiffs, in seeking to avail themselves of the ' Barclay v. Weaver, 19 Pa. St. 396 , S. ' Robinson v. Barnett, 18 Fla. 602 ; S. C. 57 Am Dec. 661. C. 43 Am. Rep. 327. Cummings v. Kent, 44 Ohio St. 96. * Wright v. Andrews, 70 Mo. 86 ; S. C. Schmied v. Franlc. 86 Ind. 255. 35 Am. Rep. 308. Lane v. Steward, 20 Me. 98. ' ' Boyd v. Bank of Toledo, 32 Ohio St. Hazard v. White, 26 Ark. 155. 526 ; S. C. 30 Am. Rep. 624/ Boyd V. Cleveland, 4 Pick. 525. • Fletcher v. Piersoii, 69 Ind. 281 ; S. C. Taylor v. French, 2 Lea, 260 ; S. C. 31 35 Am. Rep. 214. Am. Rep. 609. It was held in House v. Vinton Nat. Dye V. Scott 35 Ohio St. 194 ; S. C. Bank, 43 Ohio St. 346 ; S. C. 54 Am. 35 Am. Rep. 604. Rep. 813, two judges dissenting, that Contra : Barry v. Morse, 3 N. H. 132. notice of protest is not dispensed with by Kern v. VonPhul. 7 Minn. 426 the fact that the indorser has made a Farwell v. St. Paul Trust Co. 45 Minn. general assignment for the benefit of 495 ; S. C. 22 Am. St. Rep. 742. creditors. This seems rather opposed to Beeler v. Frost, 70 Mo. 185. the opinion of the text writers. See note, ' Oxnard v. Varnum, iii Pa. St. 193 ; 54 Am. Rep. 818. S. C. 56 Am. Rep. 255. ' Culver v. Marks, 122 Ind. 554 ; S. C. 17 Bogartv. McClung. 11 Heisk. 105 ; S. Am. St. Rep. 377. - C. 27 Am. Rep. 737. ' Allen v. Rundle, 50 Conn. 9; S. C. 47 Ross V. Kurd, 71 N. Y. 14 ; S. C. 27 Am. Rep. 599. Am. Rep. i. Stone v. Rockefeller, 29 Ohio St. 625. ' Buckley v. Bentley, 48 Barb. 283. NEGOTIABLE INSTRUMENTS. 257 contract in a court of law, would be permitted to go back of the writing and prove that the agreement comprehended a waiver of demand of payment, as well as notice of non-payment. It would not be the case of a contract resting partly in writing and partly in parol, when oral proof would be admissible to supply the deficiency in the writing ; for manifestly the writing was intended to express the entire agreement. The parties have put the agree- ment which they made on the subject of what should be waived into writing, and are to be deemed to have given thereby full expression to their meaning, and hence parol evidence of their language contradicting, varying or adding to that which is cqn- tained in the written instrument, must be excluded, i Greenl. Ev. sec. 282.. Renard v. Sampson, 12 N. Y. 561. That there was no consideration for the agreement, cannot change the rule of evidence, in regard to what shall be competent proof of what the agreement was. It is a rule of evidence applicable to the mode of proving a fact, and whether that fact is a contract or a waiver, it seems to me can make no difference with reference to its applicability. This principle was held in Halliday v. Hart, 30 N. Y. 474. If the principle adverted to applies to this case; the written entry on the note must be taken as the evidence of what the parties finally agreed upon as to the waiver, and the plain- tiffs had no right to rely on what had been said in reference to a waiver of demand. It follows that the admission of parol evi- dence of the prior and contemporaneous conversations on the subject between the parties was erroneous." One of the four judges dissented. The decision comes within the rule laid down in the chapter as to incomplete agreements, that the subject of waiver having been specified in the writing, and certain things having been waived, the writing must conclusively be deemed complete on that subject, and no oral addition may be made to the things waived. Sec. IT. Alteration. Parol evidence is competent to prove material alter- ations, even' as against a bona fide holder, and to explain alterations.^ ' Brown v. Straw, 6 Neb. 536; S. C. 29 First Nat. Bk. v. Frick'e, 75 Mo. 178; Am. Rep. 3^9. S. C 42 Am. Rep. 397. McCauIey v. Gordon, 64 Ga. 221; S. C. Nicholson v. Combs, 90 Ind. 515; S. C. 37 Am, Rep. 68. 46 Am. Rep. 229. 258 PAROL EVIDENCE. Sec. 78. Forgery — raification. Parol evidence is competent to show forgery or ratifi- cation of a forged signature.^ When the name of one maker of a joint note has been forged, another makei; although only a surety and signing in the belief that the forged name is genuine, is nevertheless bound to an innocent payee.^ One whose name is signed to a note by another as surety, without his knowledge or authority, is not rendered liable by his promise to the payee after transfer to pay it.^ A prpmise, by one whose indorsement on a note is forged, to pay the same, is void as against public policy.* A mere promise to pay a forged note, when such promise is given by the supposed maker of the note without any new consideration, and after the promisee has acquired the note, is not binding.* The defendant, whose name had been forged as surety on a note, on being shown the note by the owner admitted that the signature was genuine, and proniised to pay the note, supposing that he had signed the note. The owner was thus induced to forbear suit until the maker became insolvent. Held, that the defendant was estopped from setting up that his signature was forged.* An indorser may not set up the forgery of any precedent signature.^ But he may allege the forgery of a subsequent indorsement to a holder to whom he has paid the paper, and recover back.* Aldrich t. Smith, 37 Mich. 468. S. C. Jones v. Bangs, 40 Ohio St. 139; S. C. 26 Am. Rep. 536. 48 Am. Rep. 664. Laub V. Paine, 46 Iowa, 550; S. C. 26 Charlton v. Reed, 61 Iowa, 166; S. C. Am. Rep. 163. 47 Am. Rep. 808. Vaughan v. Fowler, 14 S. C. 355; S. C. Hartley v. Corboy, — Pa. — ; 24 Atl. 37 Am Rep. 731. Rep. 295. > Wilbur V. Stoepel, 82 Mich. 344; S. C. ' Star Ins. Co. v. Bank, 60 N. H. 445. 21 Am. St. Rep. 568. State Bank v. Fearing, i6 Pick. 533. * Helms V. Wayne Agl. Co., 73'Ind. 325; Bell v. Dagg, 60 N. Y. 528. S. C. 38 Am- Rep. 147. Hannum v. Richardson, 48 Vt. 508. » Owsley V. Philips, 78 Ky. 517; S. C. Condon v, Pearce, 43 Md. 83. 39 Am. Rep 258. Cochran v. Atchison, 27 Kans. 732. * Shisler v. Vahdike, 92 Penn. St, 447; Dan, Neg Inst., 4th ed., § 672. S. C. 37 Am. Rep, 702. « Dan. Neg. Inst., 4th ed., § 1357. » Workman v. Wright, 33 Ohio St. 405; Canal Bank v. Bank of Albany, i Hill, S. C. 31 Am. Rep. 546. 287. * Rudd V. Matthews, 79 Ky. 479; S. C. 42 Am. Rep. 231. NEGOTIABLE INSTRUMENTS. 259 Sec. 79, Fraud. Parol evidence is admissible as between the original parties to show fraud or duress, and so as to third parties with notice, or without having paid value.* But duress of the maker will not relieve a voluntary indorser for value."^ Sec. 80. Mistake. Parol evidence is admissible between the original par- ties to show mistake and to have it corrected. As in the amount.' Or in the form of liability.* Or in the fact of liability.' Or in the date.* But not to show that the party intended to contract for a different liability.' Equity will not correct a note for a mutual mistake as to the legal effect. As where the parties supposed the note would bear the conventional rate of interest, in excess of the legal rate, after maturity.* Or when a surety gave a new note, both parties being ignorant of the legal effect of the action of his principal to release him.' Sec. 81. Bona fide holding:. Parol evidence is competent to prove or disprove that a third party paid value and took without notice of de- fenses, in the usual course of business.'" Sec. 83. Indorsers estopped. An indorser may not dispute the validity of the maker's signature as against an innocent holder for value. '•Phillips V. Meily. io6 Pa. St. 536. ' Southall v. Rigg, 11 C. B. 481. Gross V. Drager, 66 Wis. 150; 28 N. W. • Paysant v. Ware, i Ala. (N. S.) 160. Rep. 141. ' Prosser v. Luqueer, 4 Hill, 420; S. C. Ormsbee v. Howe. 54 Vt 182; S. C. 41 40 Am Dec. 288. Am. Rep 841. Cook v. Brown, 62 Mich. 474; S. C. 4 Millard v. Barton. 13 R I. 601 ; S. C. Am. St. Rep. 870. 43 Am, Rep 51. " Rector v Collins, 46 Ark. 167; S. C. 55 ' Bowman v. Hiller. 130 Mass. 153; S. ' Am. Rep. 571. C 39 Am, Rep. 442. » Churchill v, Bradley. 58 Vt. 403; S. C. ' Claxon V. Demaree, 14 Bush, 173. 56 Am. Rep. 563. * Hopkins v. Ins. Co., 57 Iowa, 204. "> Chrysler v. Renois, 43 N. Y. 209. 260 PAROL EVIDENCE. As in case of a copartnership signing.* Or of a married woman's note.^ Or of an infant's note.' Sec. 83. Relations of parties. Parol evidence is competent, between the immediate parties, to show their real relation, and in respect to third parties, that such relation was known to them, although different from the apparent relation. " Nothing is more common than to introduce evidence of the real and true relation of parties to each other whose names are on negotiable paper, where prima facie the position or order of sig- nature makes a contract different from the true relations of the parties. The proper inquiry is, who among the parties is to pay the debt."* Thus an apparent maker may show that the holder knew him to be a mere surety.' So in a suit by indorsee against indorser the latter was permitted to show that the plaintiff, for the makers, paid the amount of the note to the defendant holders, and that thereafter, and after delivery of the note to the plaintiff for the makers, the defendant, at plaintiff's request, indorsed with the express understanding, that it was to be used by plaintiff only^as evidence to the makers that he had paid the note.* So as against the holder, the payee may show he indorsed after payment, at plaintiff's request, as evidence of payment.' Or that an apparent maker signed as surety, in order to let in the defense of discharge by extension of time to the principal.* Defendant indorsed to C, and C. to plaintiff. The note was secured by mortgage, and C. had foreclosed a junior mortgage and bought in } Dalrymple v. Hillenbrand, 62 N. Y. 5; Howell v. Sevier, i Lea, 360; S. C. 27 S. C. 20 Am. Rep. 438. Am. Rep. 771. Montgomery v. Crossthwait, 90 Ala. Harmon v. Hale, i Wash. 422; S. C. 553; S. C. 24 Am. St. Rep. 832. 34 Am. Rep; 816. ^ Edmunds V. Rose, 51 N. J. L. 547; S. Hubbardv. Gurney,64N. Y. 457;over- C. 14 Am. St. Rep. 704. ruling Campbell v. Tate, 7 Lans. 370, Davis V. Statts, 43 Ind. 103; S. C. 13 and Benjamin v. Arnold, 2 Hun, Am. Rep. 382. 447. Winn V. Sanford, 145 Mass. 302; S C. • Morris v. Faurot, 21 Ohio St. 155; S. I Am. St. Rep. 461- C. 8 Am. Rep. 45. =■ Motteux V. St. Aubin, 2 W. Bl. 1133. ' Spencer v. Sloan, 108 Ind. 183; S. C. ■* Colgrove v. Rockwell, 24 Conn. 584. 58 Am. Rep. 35. * Irvine v. Adams, 48 Wis. 468; S. C. ' Hubbard v. Gurney, 64 N. Y. 457. 33 Am. Rep. 817. NEGOTIABLE INSTRUMENTS. 261 the property. Evidence was admitted to show that C. bought to relieve his property, and agreed with defendant that he was not to be liable.' A note payable to the order of " myself," signed by two, and placed by one in the hands of the other to be nego- tiated for his own benefit, may be transferred by indorsement by that other alone; parol evidence is competent to show the circumstances; and it makes no difference that the maker not indorsing was surety, and that the transferee knew that fact.^ So where a note payable to " order of myself," was signed by two, evidence was admitted to show which was payee and that the other was surety.' A payee-indorser may show, as against an indorsee, that he indorsed to enable the party to whom he deliv- ered the note to collect it for the defendant, although that party sold it to the plaintiff, who filled up the indorsement to himself^ Accommodation indorsers may show their relation by parol, and enforce contribution.* One who indorsed in blank after maturity, sued by endorsee, may show the latter's agreement to have recourse to him only after failure to collect from the maker.^ Evi- dence is competent to show that several indorsed successively for accommodation, to obtain a discount for one of the parties.' Actions for contribution: In Norton v. Coons, 6 N. Y. 33, two having signed a note as sureties evidence was held incom- petent to show that they signed at different times, without communication with each other, and that the principal agreed with the latter that he should not be surety except for the prior signers. But this is distinguished in Wells v. Miller, 66 N. Y. 255, where evidence was admitted to show the relations of the parties and facts affecting the .equities. And in ' McCallura v. Jobe, 9 Baxt. 168; S. C. 40 Am. Rep. 84. ' First Nat. Bank v. Fowler, 36 Ohio St. 524; S. C. 38 Am. Rep. 610. -• Jenkins v. Bass. 88 Ky. 397; S. C. 21 Am. St. Rep. 344. ' Rliodes V. Risley. N. Chip. 44; S. C. i Am. Dec. 6g6. Johnson v. Martinus. 4 Halst. 144; S. C- 17 Am, Dec. 464; overruled in Chaddock v, Vanness, 35 N. J. L. 517; S. C. 10 Am. Rep. 256. ' Daniel v. McRae, 2 Hawks, 590; S. C. II Am. Dec 787. Farwell v. Ensign. 66 Mich. 600. ' Miner v. Robinson, \ D. Chip. 392; S. C. 12 Am. Dec. 694. ' Pitkin V. Flanagan, 23 Vt. 160. To the same effect generally under this rule : Craythorne v. Swinburne, 14 Ves. 160. Oldham v. Broom, 28 Ohio St. 41. Adams v. Flanagan, 36 Vt. 400. Sisson V. Barrett, 2 N. Y. 406. Williams v. Glenn, 92 N. C. 253. Wood V. Matthews, 73 Mo. 477. Hyler v. Nolan, 45 Mich. 357. Crosby V. Wyatt, 23 Me. 156. Mech. Bank v. Bank, 5 Wheat. 326. Lacy V. Lofton, 26 Ind. 324. 262 PAROL EVIDENCE, Sayles v. Sims, 73 N. Y. 553, where a joint and several note was signed by three, the word " surety " being added to the signature of the last signer, in an action for contribution, it was held that he might show that he was surety for only one, and that the second signer was also a surety. The same in Chapeze v. Young, 87 Ky. 477; Oldham v. Broom, 28 Ohio St. 41. Of Norton v. Coons, supra, it is said, in Houck v. Graham, 106 Ind. 195 ; S. C. 55 Am, Rep. 727, that its doctrine " has been often denied, and in effect though not in terms, is overruled by the case of Wells v. Miller, supra." But it is again cited, without disapproval, in Sayles v. Sims, supra. In an action by an apparent principal against an apparent surety on a sealed note for contribution, evidence is competent to show that both were principals.* But where an indorser, who has paid the note, sues another indorser for contribution, the latter may show that all indorsed for accom- modation and agreed to be co-sureties.^ Where husband and wife make a note it may be shown by parol for whose debt it was given .^ Sec. 84. Showing relations as to third parties. But the apparent relation of the parties may not be changed nor their agreement shown by parol to the detriment of an innocent and ignorant third party. So an apparent principal may not show himself a mere surety, as to an innocent payee.' So one who signs a negotiable note, complete on its face, as surety, and delivers it to the maker on the condition that he shall procure the signature of a certain other person as surety before delivery to the payee, cannot set up the non-fulfillment of that condition as against the payee who was ignorant of it."* Nor may an accommodation endorser show that he was a mere surety.^ A regular indorser, or one apparently regular, may not vary his liability by proof of his own intention or agreement of the parties, nor show that his indorsement was ' Williams v. Glenn, 92 N. C. 253; S. C. McCloskey v. Ind. etc. Union, 67 Ind. 53 Am. Rep, 416. 86 ; S. C, 33 Am. Rep. 76. ' Easterly v. Barber, 66 N. Y. 433. Exeter Bank v. Stowell, 16 N. H. 61 ; * Schofield V. Jones, — Ga. — ; 44 Alb. S. C. 41 Am. Dec. 716. L. J. 418. 'Jordan v. Jordan, 10 Lea, 124; S. C. See generally, notes, 29 Eng. Rep. 43 Am. Rep. 294. (Moak), 224, 34 id. 236. • Stephens v. Monongahela Nat. Bk. 88 " Hoge V. Lansing, 35 N. Y. 136. Pa. St. 157 ; S. C. 32 Am, Rep. 438. NEGOTIABLE INSTRUMENTS. 263 special or not regular. As that he indorsed simply to identify the payee, or without recourse-' This doctrine is well laid down by Elliott, J., in Stack v. Beach, 74 Ind./S7i ; S. C. 39 Am. Rep. 113, where the contention was to show that the indorsement was merely to identify the payee. The court said : •' There is some conflict in the decisions of other courts, but the weight of authority is with the holding of our court, that the indorsement is a written contract, and within the rules of evidence ordinarily applicable to such contracts. The cases which hold the contrary doctrine proceed upon the theory that the contract is implied by law, and is not set out in writing, but this doctrine cannot be reconciled with fundamental principles. The reason upon which rests the rule sanctioned by this and many other courts is thus well and accurately stated in Woodward v, Foster, 1 8 Gratt. 200 : '■ When the legal import of a contract is clear and definite, the intention of the parties is for all substantial purposes as distinctly and as fully expressed as if they had written out in words what the law implies. It Js imniaterial how much or how little is expressed in words if the law attaches to what is expressed a clear and definite import. Though the writing consists only of a signa- ture, as in the case of an indorsement in blank, yet where the law attaches to it a clear, unequivocal and definite import, the con- tract imported by it can no more be varied or contradicted by evidence of a contemporaneous parol agreement than if the whole contract had been fully written out in words. The mischiefs of admitting parol evidence would be the same in such cases as if the terms implied by law had been expressed.' There is an important exception to the general rule that an indorsement cannot be varied or contradicted by parol evidence. Parol evidence is admissible for the purpose of showing that the indorsement created a trust. Thus it may be shown that a prin- Thacher v. Stevens, 46 Conn. 561 ; S. C. 33 Am. Rep. 39. Charles v. Denis, 42 Wis. 56 ; S. C. 24 Am. Rep. 383. Wright V. Remington, 12 Vroom, 48 ; S. C. 32 Am. Rep. 180. Williams v. Bank, 67 Tex. 607. Bigelow V, Colton, 13 Gray, 309 ; S. C. 74 Am Dec 633. Knoblauch v. Foglesong, 38 Minn. 352. Farr v. Ricker, 46 Ohio St. 265. Smythe v. Scott, 106 Ind. 245. ' Stack V. Beach, 74 Ind. 571 ; S. C. 39 Am. Rep. 113. Doolittle V. Ferry. 20 Kans. 230 ; S. C. 27 Am. Rep. 166. Martin v. Cole. 104 U. S. 30. Good V. Martin. 95 U. S, 95. Goodwin v. Davenport 47 Me. 112 ; S. C. 74 Am. Dec. 478. Carpenter v. McLaughlin, 12 R. I. 270; S C. 34 Am- Rep, 638. Hall V Newcomb. 7 Hill, 416 ; S. C. 42 Am. Deo. 82 264 PAROL EVIDENCE. cipal indorsed to an agent for the purpose of allowing the latter to use the bill for some particular purpose. Dale v. Gear, 38 Conn. 15 ; S. C. 9 Am. Rep. 353 ; Chaddock v. Vanness, 35 N. J. L. 517; S. C. 10 Am. Rep. 256. So it has been held that the indorsement may be shown to have been for collection merely, and that the instrument was delivered as an escrow upon an express condition not performed. Ricketts v. Pendleton, 14 Md." 320 ; McWhirt v. McKee, 6 Kans. 412 ; Wallis v. Littell. 1 1 C. B. (N. S.) 369 ; Bell v. Lord Ingestre, 12 Q. B. 317. It is upon this general doctrine that the holding in Hazzard v. Duke, 64 Ind. 220, that it may be shown by parol evidence that the instrument was indorsed as collateral security can be fully sustained. The principle that parol evidence is competent for the purpose of showing a trust js by no means confined to contracts, of indorsements. Whart. Ev. sec. 903. A familiar illustration of this general doctrine is sup- plied by tlie numerous cases holding that a deed absolute on its face may be shown to be a mortgage. The cases which hold, that as between the parties who executar or indorse the bill the true relationship may be shown, do not trench upon the rule that an indorsement cannot be varied by parol evidence. The rights of such parties may be tried between themselves, but the rights of the holders cannot be thereby affected. Houston v. Bruner, 39 Ind. 376. Nor do those cases which hold that where the indorse- ment is made by a third person, prior to an indorsement by the payee, parol evidence is admissible to show the character of the indorser's undertaking, have any bearing upon the question here under discussion. The contract in such a case is unlike that of a full contract created by writing the name after the payee has regularly indorsed the instrument. The indorsement of a note or bill not previously indorsed or not indorsed at all by the payee is an irregular proceeding, and the contract created by it is not one of fixed and definite legal import. An indorsement regularly following that of the payee does constitute a certain and defined contract, with a legal force and meaning quite as complete and certain as if all the conditions and stipulations of the contract had been written out at full length. This is substantially the doctrine declared in Vore v. Hurst, 13 Ind. 551, and which has been sanctioned by a long and unbroken line of decisions. There are many adjudicated cases declaring and enforcing the principle upon which our cases are bottomed. Among them are Brown v. Spofford, 95 U. S. 474 ; Specht v. Howard, 16 Wall. 564 ; Howe NEGOTIABLE INSTRUMENTS. 265 V. Merrill 5 Cush. 80; Bigelow v. Colton, 13 Gray, 309; Wright v. Morse, 9 id. 337 ; Crocker v. Getchell, 23 Me. 392 ; Tankersley v. Graham, 8 Ala. (N. S.) 247." In Martin v. Cole it was held that it is not competent in an action against an indorser by his immediate indorsee upon an indorse- ment made in blank, of a negotiable promissory note, to prove as a defense that as part of the transaction it was agreed between the parties, but not in writing, that it should merely have the legal effect of an indorsement expressed to be without recourse. Matthews, J., said : " My conclusion on this point therefore is that it is a general rule of law that a blank indorsement, as between an indorser and his immediate indorsee, creates a definite contract in writing, as to such parties, which cannot be modified by a contemporaneous oral agreement. This result would seem, upon principle, decisive of the question, arising in the present case, yet nevertheless there is another subject which cannot be properly passed in silence, for there, are decisions which cannot fail to command much respect, which hold that as between an accommodation indorser and indorsee, the form of the note is ^not conclusive, and that in that connection parol evidence is admissible. The first of the cases here alluded to is that of Phillips v. Preston, 5 How. 278, and it is not to be denied that it is exactly to the purpose, for it explic- itly declares that an agreement between first and second indorsers for the accommodation of the maker, to share the loss equally, made at the time of indorsing the note, may be proved by parol. In that case, as in the present one, the first indorser had paid the note, and the suit was by him against the indorsee for contribu- tion, on the ground that such was the oral understanding. I hive examined this case with care, and although yielding to it all the deference that of right belong to so high an authority, have alto- gether failed to be able to concur in the principles and reasoning on which its conclusion rests. The theory by which the result reached its attempted to be justified is this : That the suit is not upon the contract arising by law out of the act of indorsing, but on what is called the collateral oral arrangement'. The rule is plainly admitted that written evidence cannot be altered by parol. To show in what distinct terms this admission is made, and also the rule of decision, the following quotation will suffice: Alluding to the extrinsic testimony, the opinion says: 'Were the action on the notes, and this evidence offered to contradict them, it would 266 PAROL EVIDENCE. be entirely different, because in an action on a note, parol testimony is not competent to vary its written terms, and probably not to vary a blank indorsement by the payee from what the law imports. * * * So between contending parties likewise, all prior con- versation is supposed, so far as binding, to be embodied in the written contract * * * But the parol evidence here is not offered in any action on the note, or to alter its terms or its indorsements , nor is any prior or contemporaneous conversation offered to vary the note or its indorsement, in an action founded on either of them. But it is offered to prove a separate contract, which was made by parol, and is of as high a character as the'law requires, and this evidence is plenary and entirely satisfactory to substantiate the separate contract.' It will be observed that this reasoning admits the fact the indorsement constituted a definite contract, in writing, between the parties to the litigation, and that if the action was on that written contract the parol evidence would have been inadmissible, and it then asserts that there is what the opinion calls a collateral contract, upon which the suit was based. Now, what seems to me impossible to concede, is that on the facts stated there existed two legal contracts — an oral one and a written , one. How can this be so, when the one is contradictory of the other? The written contract bound this first indorser, with refer- ence to the rights of the indorsee, to pay the whole note; the oral contract bound him to pay only half. Such stipulations relate to the same subject-matter, and they cannot stand together and the consequence is it must be conclusively presumed that the parties did not intend to establish such inconsistencies. Such a juncture presents nothing but the ordinary case of a conflict between the oral and written evidence ; in that case the former requiring the first indorsee to pay the entire claim, and the latter binding him only to bear a moiety of it. It seems to me that it would despoil the rule, which is prohibitive of parol evidence in such matters, of much of its practical benefit, if the oral engage- ment, variant from the written one, can lay a separate ground of action. Such a principle would enable a person at his option to sue on a written contract or on a contemporaneous oral contract. The hypothesis on which the rule which excludes on such occasions contemporaneous oral stipulations, is the peremptory assumption that the parties at the given time, with respect to the same sub- ject-matter, entered into but a single agreement. The reported case assumes that the first indorsee, in the same transaction and NEGOTIABLE INSTRUMENTS. 267 at the same time, agreed to pay the whole, and at the same time stipulated that he should pay only one-half of the money in ques- tion. In my opinion, upon principles thoroughly established, under the circumstances stated, the written indorsement consti- tuted the only legal evidence that could be resorted to. The other cases in which the doctrine which I have here sought to controvert has been maintained, are those of Weston v. Chamber- lin, 7 Cush. 404, and Clapp v. Rice, 13 Gray, 403 ; but it is not necessary to notice them further than to say that in neither of them does the subject appear to have been independently con- sidered ; the point in question being disposed of in a few words, and the only pertinent authority cited being that of Phillips v. Preston, which is above discussed. In the case now before the court, as I read the undertaking of the plaintiff, by force of his prior indorsement he agreed in writing to pay the whole of this money, so far as the defendant is concerned, and he cannot alter *hat agreement by the oral testimony in question." And so it has been held that a regular indorser may not show that the payee, on transferring the note by indorsement, orally agreed to assume the payment of it.^ Nor that the indorser indorsed merely to pass title and with no intention of becoming liable.^ Nor in a suit by a remote indorsee against a payee who indorsed in blank, that it was agreed between the payee and his immediate indorser that the payee should not be liable.* Nor that the holder agreed not to hold the acceptor.^ Nor that the payee agreed not to hold the maker, indorser or guarantor." Nor that a second accommodation indorser agreed to be jointly liable with the first accommodation indorser.* Nor may an accommo- dation indorser show an agreement between the maker and him- self to insert a certain place of payment in a note which provided for none, although the holder knew of the agreement.' Contrary authority : On the other hand it has been held that parol evidence is admissible to show that the indorsee agreed not ' Rodney v, Wilson, 67 Mo. 123; S. C. * Davis v, Randall, 115 Mass. 547; S. C. 2g Am. Rep. 499. 15 Ami Rep. 146. Doolittle V. Ferry, 20 Kans. 230; S. C. ' Wright v. Remington, 12 Vroom, 48; 27 Am. Rep. 166. S. C. 32 Am. Rep. 180. ' Day V. Thompson, 65 Ala. 273. • Johnson v. Ramsey, 43 N. J. L. 279. " HiU V. Shields, 81 N. C. 250; S. C. 31 ' Parker v. Sutton, 103 N. C. 191; S. C. Am. Rep. 499. 14 Am. St. Rep. 795. 268 PAROL EVlDENCIi. to come upon the indorser.' And that the payee agreed to look only to the maker.'' And to show that an indorser in blank was not to be liable as a joint promi:5or, but only in case the maker failed to pay.' And to show that an indorsement was merely to pass title, and that the indorsee agreed not to hold the indorser.* And that an indorsement was understood by all the parties to be only for collection.® And that it was agreed by all the parties that the indorser should not be liable.^ And that two indorsers agreed to be jointly liable.' And where the owner indorsed in blank, he was permitted to show the agreement of the transferee that he was not to be liable in a certain event.* And that the ' holder agreed not to look to the surety.' G. made a note pay- able to the order of J., and procured M. to indorse it, agreeing to procure the indorsement of J. as payee before negotiating it. Without doing so he transferred it to plaintiff, and it came to maturity and was protested without such indorsement. Held, that M. was not liable to plaintiff as indorser." Sec. 85. Irregular indorsement before payee. In the case of an irregular indorsement before the payee, as between the immediate parties parol proof is competent to establish their real position and relations, and show their agreement and intention. This is put on the ground " that the position of the name on the paper is one of ambiguity in itself — that it is not a complete ' Hill V. Ely, 5 S. & R. 363; S. C. 9 Am. Cole v. Smith, 29 La. Ann. 551; S. C. Dec. 376. 29 Am. Rep. 343. 'Cake V. Pottsville Bank. 116 Pa. St. Contra: Sanborn v. Southard, 25 Me. 264; S. C. 2 Am. St. Rep. 600. 409; S. C. 43 Am. Dec. 288. * Barrows v. Lane-, 5 Vt. 161; S. C. 26 Vore v. Hurst, 13 Ind. 551; S. C. 74 Am. Dec. 293. Am. Dec. 268. Perkins V. CatHn, 11 Conn. 213; S. C. Fuller v. McDonald, 8 Greenl. 213; S 29 Am. Dec. 282. C. 23 Am. Dec. 499. Bright V. Carpenter, 9 Ohio, 139; S. C. ' Ross v. Espy, 66 Pa. St. 481; S. C: 5 34 Am. Dec. 432. Am. Rep. 394. * Bruce v. Wright, 5 Thomp. & Cook, 81. ' Brewer v. Woodward, 54 Vt. 581; S. Brewer v. Woodward, 54 Vt. 581; S. C. C. 41 Am. Rep. 857. 41 Am. Rep. 857. Graves v. Johnson, 48 Conn. 160; S. C. ' Downer v. Cheesebrough, 36 Conn. 39; 40 Am. Rep. 162. S. C. 4 Am. Rep. 29. ° Kulenkamp v. Groff, 71 Mich. 675; S. ' Breneman v. Furniss, 90 Pa. St. 186; C, 15 Am. St. Rep. 283. S. C. 35 Am. Rep. 651. '" Gibson v. Miller, 29 Mich. 355; S. C. 18 Am. Rep. 98. NEGOTIABLE INSTRUMENTS. 269 contract as is the case of an indorsement by the payee, which imports a distinct and certain liability; but rather evidence of authority to write over it the contract that was entered into ; and that parol proof merely discloses and brings to light the terms of the unwritten contract that was made between the parties.' The point is very learnedly examined in Burton v. Hansford, lo W. Va. 470; S. C. 27 Am. Rep. 571, where the court said: "There is perhaps no legal subject upon which there has been a greater diversity of opinion than the question, what is the liability of a stranger to a note, who signs his name on the back thereof. In many of the States it has been decided that when a stranger signs his name oij the back of a note before its delivery, he is prima facie liable, as though he was an original promisor. This is held to be law in Maine, Childs v. Wyman, 44 Me. 433 ; in Vermont, Sylvester v. Downer, 20 Vt. 355; in Rhode Island, Perkins v. Barstow, 6 R. I. 505 : in Massachusetts, Chaffee v. Jones, 19 Pick. 260; in New Hampshire, Currier v. Fellows, 27 N. H. 366; in Indiana, Cecil v, Mix, 6 Ind. 478; in Michigan, Rothschild v. Grix, 31 Mich. 150; 18 Am. Rep. 171 ; in Minnesota, Pe.ckham v. Gilman, 7 Minn 446 ; in Texas, Carr v. Rowland, 14 Tex. 275, and in Louisiana, Collins v. Trist, 20 La. Ann. 348. In other States it is held that a party so signing is prima facie not an original promisor, but a guarantor. It is so held in Illinois, Webster v. Cobb, 17 111. 459 ; in Connecticut, Ranson v. Sherwood, 26 Conn. 437; and in Ohio, Greenough v. Smead, 3 Ohio St. 415, but in these States there is a difference in the extent of the liability of such guarantor. In other States it is held that such an indorsement by a stranger of negotiable paper before the delivery to the payee does r^ot prima facie make the party liable, either as an original promisor or as a guarantor, but only as an indorser, and therefore not liable to the payee, who occupies the position of a first indorser. This is held in New York, Herrick v. Carman, 12 Johns. 160; in Pennsylvania, Fegenbush v. Lang, 28 Penn. St. 194; in ' Dan. Neg. Inst. 4th ed„ §711. Kealing v. Vansickle, 74 Ind. 529; S. Owings V. Baker, 54 Md. 82; S. C. 39 C. 39 Am. Rep. loi. Am. Rep. 353. FuUerton v. Hill, Kans. . — ; 29 Taylor v. French, 2 Lea, 257; S. C. 31 Pac. Rep. 583. Am. Rep. 609. Eilbert v. Finkbeiner, 68 Pa. St. 243; Ilouck V. Graham, 106 Ind. 195; S. C. S. C. 8 Am. Rep. 176. 55 Am. Rep. 727. Bearing & Co. v. Creighton, 19 Oreg. Chaddock V. Vanness, 35 N. J. L. 517; n8; S. C. 20 Am. St. Rep. 800. S. C. 10 Am. Rep. 256. 270 PAROL EVIDENCE. Iowa, Fear v. Dunlap, i G. Greene, 331. In California and Missis- sippi, the payee of a negotiable note may sue a stranger who has indorsed it, his liability being prima facte that of an indorser, and not that of either a guarantor or original promisor. Jennings v. Thomas, 13 Sm. & Marsh. 617; Pierce v. Kennedy, 5 Gal. 138. In New York, where the decisions have been very inconsistent, it it is now held that where the note is not negotiable, and is indorsed by a third party before it is delivered to the payee, he may be held liable as an original promisor or as a guarantor. Cromwell v. Hewitt, 40 N. Y. 491. In Massachusetts now, parol evidence would not be even admissible to show that a stranger who put his name on the back of a negotiable note when it was made, did not thereby intend to bind himself as an original prom- isor. Way V. Butterwbrth, 108 Mass. 509. " In the case of Rey v. Simpson, 22 How. 341, Clifford, J., in delivering the opinion of the court, states the law thus : ' When a promissory note, made payable to a particular person or order, is first indorsed by a. third person, as in this case such third person is held to be an original promisor, guarantor or indorser, accord- ing to the nature of the transaction and the understanding of the parties at the time the transaction took place. If he put his name on the back of the note at the time it was made, as surety for the maker, and for his accommodation, to give him credit with the payee, or if he participated in the consideration for which the note was given, he must be considered a joint maker of the note. On the other hand, if his indorsement was subsequent to the making of the note, and he put his name thereon at the request of the maker pursuant to a contract with the payee for further indulgence or forbearance, he can only be held as a guarantor. But if the note was intended for discount, and he put his name on the back of it with the understanding of all the parties that his indorsement would be inoperative until it was indorsed by the payee, he would then only be liable as second indorser in the commercial sense, and as such would clearly be entitled to the privileges which belong to such indorsers.' It would be vain to endeavor to draw from this great mass of conflicting decisions any general principle which would meet with general support, I shall therefore attempt no review of these cases, no good would result from such review, and indeed the review of the decisions of a single State would, in many instances, lead to the conclusion that the inconsistencies of the decided cases were so great that no NEGOTIABLE INSTRUMENTS. 271 clear principle could be deduced from them. * * * I conclude that when a negotiable promissory note, made payable to a par- ticular person or order, is first indorsed by a third person, and then delivered to the payee, such indorser '\% prima facie an origi- nal promisor or guarantor, as the payee may elect, or the payee may, by indorsing his name above that of such third person, and transferring the note, make him a second indorser in the com- mercial sense. But ^the true nature of the transaction, and the understanding of the parties to it at the time, may be shown by parol proof, and such proof may destroy this right of election by the payee, arid the third person backing such note may be held liable only as an original promisor, or as a guarantor, or as an indorser according to the nature of the transaction, and the original understanding of the parties to it. If it is shown by evi- dence that such third person signed his name on the back of such a note at the time it was made as security for the maker and for his accommodation, to give him credit with the payee, such proof does not alter the right of the payee to hold him bound as origi- nal promisor, or as guarantor, or as indorser, as he may elect, but strengthens his prima facie right to elect ; such option may be exercised at any time by the payee, and so long as he holds the note, may be changed at his pleasure, even after the institution of a suit by him against such third person. If it be shown that the understanding between such third person and the payee at the time of the transaction was that such third person should be bound only collaterally, such understanding will destroy the right which the payee would have otherwise had, of electing to hold him bound as original promisor. These principtes are fairly deducible from the only cases on the subject decided in Virginia or West Virginia. Watson v. Hurt, 6 Gratt. 633 ; Orrick v. Colston, 7 id. 198, and Kearnes v. Montgomery, 4 W. Va. 29. If a third person indorses at the time it is made a negotiable note not drawn payable to him, he thereby indicates that he intends to bind himself for the payment of the note in some form, and if he has failed to indicate in what form, it is fair to presume that he intended to be bound in any manner that the payee might elect. If he indicates to the payee at the time the manner in which he intends to be bound, though his purpose thus indicated be proven by parol, he cannot be held bound otherwise by the payee." " It is true that in this case the note was not negotiable, and that in some of the States a distinction is drawn between the responsi- 272 PAROL EVIDENCE. bility to the payee aforesaid, by a stranger, who at the time a note is made puts his name on the back, where the note is nego- tiable, and where it is not. Such distinction is drawn in New York. It is' held now in that State, that if the note is not negotiable, such an indorser of it is prima facie bound as an original promisor, but if the note is negotiable, he is prima facie bound only as an indorser. Richards v. Warring, i Keyes, 576; Cromwell v. Hewitt, 40 N. Y. 491. And Phelps v. Vischer, 50 N. Y. 69; 10 Am. Rep. 433. But this conclusion that there is such a distinction between negotiable paper and paper not negotiable was not taken in New York without serious opposition. It was finally settled in that State by the case of Hall v. Newcomb, ^ Hill, 416. This case was twice argued before the Court of Errors of that State. Upon the first argument the court was equally divided in opinion, and upon the second argument it was decided by a vote of 18 to 8. In Connecticut, as before stated, it is held that the indorsement of a note not negotiable at the time it is made by a third party prima facie renders him liable to the payee only as a guarantor, and in Perkins v. Catlin, il Conn. 213, the court expressly repudiates any distinction in that respect between a note not negotiable and one that is negotiable. Such a distinc- tion in such a case is also repudiated by the Supreme Court of Missouri, though there, under such circumstances, the indorser is held prima facie liable to the payee in either case as an original promisor. Lewis v. Harvey, 18 Mo. 74. The same is the law in Massachusetts, where no distinction in such a case is made. Sumner v. Gay, 4 Pick. 311. The distinction was repudiated in Champion & Lathrop v. Griffith, 13 Ohio, 228, and also in Rothschild v. Grix, 31 Mich. 150; 18 Am. Rep. 171, where in such a case the indorser was held liable as an original promisor. The New York cases are reviewed in this last case, and the dis- tinction drawn by them in such cases between negotiable notes and other notes is repudiated by the court. And generally speaking, no such distinctions have been made by the courts in these decisions, the cases having been generally decided without any regard to the fact that the notes were or were not negotiable. I conclude therefore that no such distinction can properly be drawn. But while an indorsement by a stranger, at the time a negotiable note is made, makes him prima facie responsible to the payee, either as principal promisor or as guarantor, as the payee may elect, yet ' if the note was intended for discount.'and NEGOTIABLE INSTRUMENTS. 273 , he put his name on the back of it with the understanding of all the parties that his indorsement would be inoperative until it was indorsed by the payee, he would then be liable only as second indorser in the commercial sense.' This is the language of Clif- ford, J., in delivering the opinion of the Supreme Court of the United States in 22 How. 350, and is a just conclusion from the authorities." The editor of the American Reports says in a note on this case : " In a case like this the position of a stranger indorser was held in Jones v. Goodwin, 39 Cal. 493 ; 2 Am. Rep. 473, to be strictly that of indorser. (See id., note; p. 473.) In Ives V. Bosley, 35 Md. 262 ; 6 Am. Rep. 411, that of joint maker. In Eilbert v. Finkbeiner, 68 Penn. St, 243; 8 Am. Rep, 176, that of second indorser, prima facie, but parol evidence was admitted to show that it was that of guarantor. In Chaddock v. Vanness, 35 N. J. L. 517; 10 Am. Rep. 256, that of second indorser or surety, and parol evidence was admitted to show which ; but per se it implies no liability whatever. In Chaffe v. Memphis, etc., R. R. Co., 64 Mo. igi, prima facie that of maker, and a bona fide pur- chaser is bound by an agreement between him and the payee, that he is to be liable only as indorser. In Iser v. Cohen, i Baxt. (Tenn.) 421, that of indorser prima facie, subject to enlargement by parol evidence. The same in Best v. Hoppie, 3 Colo. 137. In Browning v. Merritt, 61 Ind. 425, prima facie that of indorser, but subject to explanation." " The differences of ruling on this subject in the different States are sufficiently pointed out in the principal case. The distinction between negotiable and non-negotiable paper seems peculiar to New York. " The cases of Moore v. Cfoss, 19 N-. Y. 227 ; Bacon v. Burn- ham, 37 N. Y. 616; Meyer v. Hibsher, 47 id. 265 ; Phelps v.. Vischer, 50 id. 69 ; Clothier v. Adriance, 5 1 id. 322, have settled the law in, New York that one, other than the maker, who indorses a negotiable promissory note before its delivery to the payee, is presumptively a second indorser, and is entitled to all the rights, privileges and exemptions incident to that situation ; that prima facie he is not liable to the payee, whose name pre^- cedes his on the note, but only to subsequent indorsers ; that an action upon such a note by payee against indorser may neverthe* less be maintained, provided the former shows (which he may .d;0 by parol ) that the apparent relative situation of the parties is not 274 PAROL EVIDENCE. the real one, and that the payee took the note from and gave credit or parted with value to the maker with the knowledge of the indorser and upon the faith of his indorsement. At first it was held that, as the payee is presumably liable to the indorser, he must, in order to recover of\\va\ and to avoid circuity of action, indorse the note without recourse, and could do so even at the trial, but since Moore v. Cross, supra, this requirement has been abandoned, and it is now held, that having the right to so indorse, it will be presumed to be done and treated as if done, and there- fore in fact need not be done at all. " The result of the various decisions seems to be as follows', viz. : That except in the technical sense of the words there is no such thing in New York as indorser- or indorsement of non-nego- tiable paper ; that the blank subscription of one's name upon or across such paper constitutes the subscriber presumptively a co- maker or joint promisor and surety of the maker, and he can be declared and recovered against as such ; that a consideration is not presumed and must always be alleged and established ; that proof of an intent to subscribe strictly as indorser, and to be liable only as such, is repugnant to the form of the contract, and will not be received; that subject to this rule the parties may severally show and claim the benefit of the exact agreement and understanding upon which the indorsement was made ; that the holder of the note may overwrite the name of the blank indorser with such agreement or understanding, or with a contract of original promise or guaranty or suretyship, and may recover upon such overwritten contract ; and finally, that the maxim ut res magis valeat quant pereat applies.'' This doctrine has been held inapplicable to a guaranty of a note. Thus in Allen v. Rundle, 50 Conn. 9 ; S. C. 47 Am. Rep. 599, on the back of a promissory note the defendants executed a guaranty that it was " good and collectible until paid." Without having sued the maker of the note, who it was claimed was insol- vent, the plaintiffs offered evidence that at the time of the making of the note it was understood between the maker, tjie guarantors and themselves, that it was made without consideration, for the accommodation of the guarantors, upon their promise to take care of it and pay it. Held, inadmissible. The court said : " We have not been able to find any case where a parol contemporaneous agreement was admitted for the purpose of showing waiver in an action upon a written guaranty like the one under consideration." NEGOTIABLE INSTRUMENTS. 275 Sec. 86. Orders. In case of an order, not negotiable, whose language is ambiguous, the attendant circumstances may be shown to determine the intention and understanding of the parties/ A. & B., cultivating on shares the farm of C. & D., part- ners gave E., a creditor of A. & B., an order to C. & D. to pay a sum of money to E. and " take the same out of our share of the grain," referring to grain raised by A. & B. on the farm in question. C. & D. wrote " order accepted on the back of the instrument, and signed their firm name. Held, that the order was a vaUd bill of exchange, not payable out of a particular fund, nor conditional ; and that C. & D. could not defend on the ground that before acceptance they had made advances "to A. & B. on the faith of their share of the grain, to an amount larger than its value, as was known to E. at the time of acceptance.^ Oral acceptance of an order is valid.* Sec. 87. Custom. Custom is provable as to the mode of giving notice of protest, in the absence of statutory regulation.* So of days of grace." Custom is not provable as to the effect of certification." Nor to excuse regular protest by proof of a preliminary notice that the paper is about to mature.^ Nor to impose the liability of indorser on one, who without indorsing them, transfers notes of third persons in payment for goods.* Sec. 88. Collateral mortgage in hands of a bona fide purchaser. Parol evidence is incompetent to subject a chattel mort- gage, executed as security for the payment of a prom- issory note, to prior equities in the hands of a bona fide purchaser of the note and assignee of the mortgage. ' Brill V. Tuttle, 8i N. Y. 454; S. C. 37 ' Security Bank v. Nat. Bank, 67 N. Y. Am. Rep. 515. 458; S. C. 23 Am. Rep. 129. ' Corbett v. Clark, 45 Wis. 403; 8. C. 30 ' Moore v. Waitt, 13 N. H. 415. Am. Rep. 763 Farmers' Bank v. Duvall, 7 G. & J. 78. ' Jarvis v. Wilson, 46 Conn, oo; S. C. 33 Barnes v. Vaughan, 6 R. I. 259. Am Rep i8. Contra : Grand Bank v. Blanchard, 23 * Gindrat v Mechanics' Bank, 7 Ala. 324. Pick. 305. Chicopee Bank v. Eager, 9 Mete. 583. Marine Bank v. Smith, 18 Me. 99. • Mills V Bank. 11 Wheat. 431. ' Paine v. Smith, 33 Minn. 495. 27 G PAROL EVIDENCE. This doctrine is very well explained in Myers v. Hazzard, 50 Fed. Rep. 155, by McCrary, J. He says: "We are confronted in the outset by a conflict of authority upon the principal ques- tion. In several of the states it is held that the assignee of a negotiable note, secured by mortgage, takes the latter, as he Tvould any other chose in action, subject to all the equities which -subsisted against it while in the hands of the original holder. The argument in support of this doctrine is that a mortgage is in its nature a non-negotiable instrument, and that the rights of the parties to it cannot be fixed and determined by the law merchant. Mortgages, it is insisted, are not commercial paper, and it is not convenient to pass them from hand to hand, so that they may perform the office of money in commercial transactions, as may be none with notes, bills, and the like. It is accordingly held, in the cases now under consideration, that while the purchaser of a note secured by mortgage may be entitled to all the rights of an innocent purchaser of commercial paper, so far as the note is con- cerned, yet, if he seeks to foreclose the mortgage, he may be met by any defense which would have been good as against the original mortgagee. Johnson v. Carpenter, 7 Minn. 176; Hos- tetter v. Alexander, 22 Minn. 559; Olds v. Cummings, 31 111. 188; White v, Sutherland, 64 111. 181; Fortier v. Darst, 31 111. 212; Sumner v. Waugh, 56 111. 531 ; Baily v. Smith, 14 Ohio St. 396. On the other hand, it is held by the Supreme Court of the United States, and by the courts of last resort in a large majority ■of the states, that an assignee for value of a negotiable note secured by a mortgage, before due and without notice, takes the mortgage, as he does the note, free from equities.existing between the original parties- It is said, in support of this doctrine, that' the note, being the principal thing, imparts its character to the mortgage. The mortgage is regarded as following the note, and as taking to itself the same qualities, so that the assignee takes the former, as he takes the latter, free from any existing equities between the original parties. A leading case upon this subject, and a controlling one, so far as the federal courts are concerned, is that of Carpenter v. Longan, 16 Wall. 271. In that case the Tule just stated was laid down by Mr. Justice Swaine as follows: " ' The assignmeat of a note underdue raises the presumption of the want of notice, and this presumption stands until it is over- come by sufficient proof. The case is a different one from what it would be if the mortgage stood alone, or the note was non- NEGOTIABLE INSTRUMENTS. 27r negotiable, or had been assigned after maturity. The question presented for our determination is whether an assignee, under the circumstances of this case, takes the mortgage, as he takes the note, free from the objections to which it was liable in the hands of the mortgagee. We hold the affirmative. The contract as regards the note was that the maker should pay it at maturity to any bona fide indorsee, without reference to any defenses to which it might have been liable in the hands of the payee. The mort- gage was conditioned to secure the fulfillment of that contract. To let in such a defense against such a holder, would be a clear departure from the agreement of the mortgagor and mortgagee, to which the assignee subsequently in good faith became a party. If the mortgagor desired to reserve such an advantage, he should have given a non-negotiable instrument. If one of two innocent persons must suffer by a deceit, it is more consonant to reason that he who "puts trust and confidence in the deceiver should be a loser, rather than a stranger." ' " In order to understand the scope of this opinion, it is neces- sary to note that the defense in the case as against the mortgage was, in substance, that as between the original parties, it had been satisfied. The mortgagor alleged that at the time of the execution of the mortgage she delivered to the mortgagee cer^ tain property, which he agreed to sell, and apply the proceeds to. the satisfaction of the note, and that, instead of so doing, he converted the property so delivered to his own use. The sole question was whether the equitable satisfaction of the mortgage in this way could be set up as against the assignee. This case is. not therefore as some lawyers have assumed, authority for the doctrine that the bona fide purchaser, without notice, of a nego- tiable underdue note, secured by mortgage, holds the mortgage precisely as he holds the note, subject to no defenses whatever that would not be good against the latter. In that case there was no question as to the title of the mortgagor at the time that the mortgage was given, nor as to the rights of any third party with respect to the mortgaged property, nor as to the validity or construction of the mortgage itself. It seems manifest that it was not the intention of the court to assert broadly the rule that, because a mortgage is given to secure a negotiable note, which before maturity is assigned to a bona fide purchaser, there- fore no objection can be raised to the mortgage, unless it would be an objection constituting a defense to the note in the hands 278 PAROL EVIDENCE. of such a purchaser. The court decided the case before it, and was careful to qualify its opinion by the words, ' under the circum- stances of this case.' Jhe general rule announced in Carpenter V. Longan has been adopted in Massachusetts, Maine, Michigan, Wisconsin, Nebraska, Iowa, Missouri, and other states. See Jones Mortg. § 834, and numerous cases cited. But the doctrine has not yet been established as the law of New York or Pennsyl- vania. Union College v. Wheeler, 61 N. Y. 88 ; Horstman v. Gerker, 49 Pa. St. 282. " In many of the cases the rule is stated to be that the mort- gage is regarded as following the note, and as taking the same character; but it must, of course, be understood that the mort- gage takes the character of a negotiable note only in so far as in its natnre it is capable of having that character imputed to it, and therefore. the rule must be subject to certain modifications or exceptions. In any suit brought by the assignee of the note to foreclose the mortgage, the mortgagor may be heard to assert that the mortgage is invalid as to all or part of the property, by reason of anything that appears upon the face of the mortgage, or by reason of anything that the assignee is bound by law to know, whether the same constitutes a defense to the note or not. A third party may be heard to assert, as against the validity of such a mortgage in the hands of the assignee, that the mortgagor, at the time of the execution of the mortgage, had no power to execute it. The mortgage in the hands of the assignee, like the note, is freed from equities existing as between the original par- ties. This being so, no defense to the mortgage, on the ground of fraud, duress, or want of consideration, could be admitted as against the assignee ; nor could the defense of payment or satis- faction, nor of a release of the mortgage, as between the original parties, nor of any other similar matter, be set up. But there may, beyond question, be defenses to a mortgage in such a case that cannot be defenses to the note, — defenses the force and effect of which cannot be determined by an appeal to the principles of the law merchant. Of this character are objections which relate to, and in the nature of the case can only relate to, the mortgage, its construction, validity, or force and effect They may be objections which third parties only are interested in raising. We cannot give to the mortgage all the properties of negotiable papeV, nor apply to it all the principles of the law merchant, without a disregard of elementary principles." DEEDS. 279 CHAPTER XVL Deeds. Sec. 89. Delivery. 90. Capacity. 91. Consideration — anexpressed. 02. Consideration — expr^sed — how far subject to inquiry. 93. Consideration — showing deed to be a mortgage. 94. Consideration — illegal. 95. Acknowledgment — lack of. 96. Acknowledgment — between the parties. 97. Acknowledgment — as to innocent parties. 98. Explanation of ambiguities. 99. Boundaries — declarations of former owners. 100. Boundaries — reputation. loi. Boundaries — practical location — acquiescence. 102. Boundaries.— practical location — agreement. 103. Resulting trust. 104. As to covenants and reservations. Sec. 89. Delivery. Parol evidence is admissible to show that a deed was never delivered, or was delivered upon an unfulfilled con- dition, or in escrow. Stephen says (Ev., art. 90), that parol evidence is admissible to prove " the existence of any separate oral agreement, consti- tuting a condition precedent to the attaching of any obligation under any contract, grant or disposition of property." The court in Kidner v. Keith, 109 E. C. L. 34, announced the well-estab- lished rule : There is no doubt in point of law that where by express declaration, or from the circumstances, it appears that the delivery of a deed was not intended to be absolute, but that the deed was not to take effect until some contemplated event should have happened, the deed is not a complete and perfect deed until that event has happened." ' ' Approved in Dietz v. Farish, 79 N. Y. Chipman v. Tucker, 38 Wis. 43; S. C. 520. 20 Am. Rep. i. The same principle is declared in : Tisher v. Beckwith, 30 Wis. 55; S. C. Leppoc V. Nat. Union Bank, 32 Md. 136. 11 Am. Rep. 546. Harkreader v. Clayton, 56 Miss. 383; Hawkes v. Pike, 105 Mass. 560. S. C. 31 Am. Rep. 369. Elmore v. Marks, 39 Vt. 538. 280- PAROL EVIDENCE. Delivery to grantee in escrow: A completed deed may not however be delivered to the grantee In escrow, to take effect upon the? performance of some collateral act.' So in Hargrave v. Mel- bourne, 86 Ala. 270, it was held in respect to a deed, perfectly- executed on its face, but delivered to the grantee on condition that the grantor's wife should afterwards execute it. The subject was learnedly examined in Miller v. Fletcher, 27 Gratt. 40(3 ; S. C. 21 Am. Rep. 356, which was the case of a bond, perfect on its face, but delivered to the obligee on condition that others sign it. The case of a bond is distinguishable from that of a deed, but the following language is instructive : " In Hicks v. Goode, 12 Leigh, 479, 490, Judge Cabell, in delivering the opinion of the court, conceded the distinction between a deed delivered as an escrow to the party to the deed, and one that is delivered to a stranger, and he was not disposed to controvert it. He said : ' The reasoning on which the distinction is founded was not only technical, but unsatisfactory, to his mind. He considered it as settled however that if a deed be delivered to the party himself, to whom it is made as an escrow, but to become the deed of him who sealed it on certain conditions, in such case, whatever be the form of the words, the delivery is absolute, and the party is not bound to perform the conditions.' " The counsel who argued that case, on both sides, admitted that such is the law ; too well settled for controversy. It was insisted however on behalf of the defendant, that the rule applied only to a deed perfect and complete on its face, requiring nothing to be done to give it full efficacy as a deed, according to the intention, but the mere delivery. But where the instrument at the time it passed into the hands of a grantee or obligee is incom- plete, and indicates clearly on its face that some other act is to be done to give it effect, according to the intention of all the parties, there it was insisted the rule did not apply, and it was competent to show by parol that the delivery was upon a condi- tion which had not been performed. And so this court held, and it will be seen upon examination that the decision was placed upon that ground exclusively. " In Ward v. Churn, 18 Gratt. 801, Judge Jaynes adverted to this rule of the common law : 'He said it was strict and techni- cal to the last degree ; and yet he did not venture to deny that ' Worrall v. Munn, 5 N.Y. 228; S. C. 55 Cocks v. Barker, 49 N. Y. 107. Am. Dec. 330. DEEDS. 281 the doctrine is well settled.' In the course of his opinion' he cites with approbation some observations of Chief Justice Best in the case of Hudson v. Revett, 1 5 Eng. C. L. 467, wherein the learned chief justice quotes Comyn, vol. 4, p. 276, Fait, A. 4 as saying '■ ' If the deed be delivered to the party as an escrow, to be his deed on the performance of a condition, it is not his deed till the condition be performed, though the party happens to have it before the condition is performed.' " Now it is most remarkable, be it said with all humility, that two judges, so distinguished for accuracy and learning, should have fallen into such an error. What Comyn does say is this : ' So if it (the deed) be delivered to a stranger as an escrow, to be- his deed upon performance of conditions, jt is not his deed until the conditions are performed, though- the party happens to have it before- 2 Rol. 25, 1, 25, 45 ; CokeLitt. 36 «.' ' Or be delivered to a stranger to keep till conditions be performed.' 2 Rol. 25, 1, 40. ' Or to be delivered to the party a's his deed upon perform- ance of a condition.' " Now this is relied upon by Chief Justice Best as authority for the position, that a deed may be delivered to the party upon con- dition, and it is good. But it will be perceived that Comyn means simply to affirm, that if the deed be delivered to a stranger, ' to be delivered to the party as his deed upon performance of a con- dition, it is not his deed till the conditions be performed, though the party happens to have it before.' That such was his meaning is manifest from the very next sentence, not noticed by the learned chief justice, in which he declares : ' But a delivery can not be to the obligee as an escrow.' 2 Cro. 85, 86. "And in Division A. 3, p. 274, Comyn again declares, that ' if an obligation be made to A., and delivered to A. himself as an escrow, to be his deed upon performance of a condition, this is an absolute delivery, and the subsequent words are void and repugnant. " A more remarkable instance of an entire misconception of an author's meaning has rarely been exhibited by a learned judge. It is worthy of observation that Chief Justice Best himself does not assert the rule laid down by Sheppard is not sound law ; he merely declares it a technical subtlety. The case of Hudson v. Revett was decided upon the ground that the deed was incom- plete when it passed into the hands of the grantee ; and the 282 PAROL EVIDENCE. observations of the chief justice were wholly unnecessary to the decision." " There is one other case decided by an English court, some- times relied on as opposing the doctrine of the text in Sheppard and the other common-law writers. I mean the case of Johnson v. Baker, 4 Barn & Aid, 440, in which it was held it might be shown by parol that a composition deed was delivered as an escrow upon condition it should be void unless executed by certain other cred- itors, which was not done. It will be seen however that the instrument was a deed of composition, whereby payments were to be made to all the creditors, each of whom was to release his claim, and if .any should refuse, the entire purpose of the deed was defeated. Nor does it appear that the creditor to whom the delivery was made, was then a party to the deed, and he was therefore in no condition to insist upon the estoppel. " With the exception of these cases, which indeed do not expressly controvert the principle, the English authorities, so far as I have seen, are uniform in their adherence to the doctrine for which I am contending. In the United States the cases speak almost with one voice. This is the more remarkable because in a large majority of the States, a strong disposition has been con- stantly manifested either by judicial decision or by legislation, to rid the courts of those rules of the common law which are, regarded as purely technical. The rule in question has however been adhered to with a unanimity almost without parallel. It is impos- sible, with any just regard to the proper limits of an opinion, to quote from the numerous authorities upon this subject. It may not be improper, in a question of so much importance, never yet settled in this State, to cite the opinions of distinguished judges in some few of the cases decided in the different States, and also the opinions of learned commentators who have written upon the subject." Citing Simonton's Estate, 4 Watts, 180; Duncan v. Pope, 47 Ga. 445 ; Cin., Wil. & Zanesville R. Co. v. Iliff, 13 Ohio St. 235 ; Ward v. Lewis, 4 Pick. 518 ; Currie v. Donald, 2 Wash. (Va.) 59 ; 2 Lomax Dig. 38 ; 3 Wash. Real Prop. 268. " To these authorities may be added the cases of Brackett v. Barney, 28 N. Y. 333 ; Worrall v. Munn, 5 id. 238 ; Jackson v. Catlin, 2 Johns. 259, decided by the Supreme Court of New York. The case of Black v. Shreve, 13 N. J. Eq. 456; the case of Herdman V. Bratten 2 Harr. (Del.) 396; the case of Mad. & Ind. Plank R. Co. V. Stevens, 10 Ind. i ; the case of Brown v. Reynolds, 5 Sneed DEEDS. 2B3 ^Tean.) 639; Gibson v. Partee, 2 Dev. & Battle (N. C.) 530; Hagood V. Harley, 8 Rich. Law, 325 ; Graves v. Tucker, 10 S. & M. (Miss.) 9; Firemen's Ins. Co. v. McMillan, 29 Ala. 147, 161 ; and the case of Moss v. Riddle, decided by the Supreme Court of the United States. 5 Cranch, 351. " A doctrine sustained by such an array of authorities, a doc- trine which has survived all the changes and innovations of modern reform, must have something to commend it to the appro- bation of the courts beyond its mere antiquity. It is not to be overturned by denunciation. The chief argument against it is, that it recognizes distinctions technical and unsatisfactory in the extreme. It is said, for example, a deed may be delivered as an «scrow to a stranger, or even to a co-obligator, to be delivered by them to the obligee ; and there can be no good reason why it should not be delivered directly to the obligee as an escrow. It would be easy to show that this distinction is not so technical and unsatisfactory as is imagined. But it does nbt concern me to vindicate that distinction, I am dealing only with the particu- lar rule of the common law invoked in this case. The question is, whether this court can safely depart from it here. Whether it can overturn that which is so well established elsewhere, and so fully sustained by the concurring voices of able commentators and great judges." Mr. Jones, conceding this to be the old rule, says (Const. Cpnt. § 163), that " this rule cannot be successfully defended," and " the best authorities do not sustain the proposition that a deed cannot be put into the possession of the grantee upon condition, and such a rule could not be enforced unless courts were prepared to yield the principle that the real intention of the parties must govern the interpretation of their acts." It is indeed diflScult to dis- tinguish between the conditional delivery of an unsealed instru- ment and of a sealed instrument, and to ascribe any reason for the admission of oral evidence in the former case which would be equally applicable in the latter. But so far as adjudications go they seem to sustain the old rule. In Ford v. James, 4 Keyes, 300, however, where a deed was delivered to the grantee, he pay- ing part of the purchase price, but declaring that he would not then agree to accept it, and promising to pay the balance or return the deed in a few day's, receiving back the money paid, this was held no delivery. The court observed : " Taking the evidence of Spencer alone, it clearly appears that he never made 284 PAROL EVIDENCE. any delivery of the deed, conditional or otherwise. He did not deliver it to James as and for the deed of the grantors, but merely left it with him as a depositary until he should determine whether or not he would take the land. This constitutes no legal delivery. A deed may be deposited with the grantee or handed to him for any purpose other than as the deed of the grantor, or as an effect- ive instrument between the parties, without becoming operative as a deed." So in Blewett v. Cable Ry. Co.'s, 51 Fed. Rep. 628, it was held that parol evidence was inadmissible to show that a deed, deliv- ered to and purporting to vest title unconditionally in an assignee of railroad companies, as part of a bonus to aid the construction', was not to take effect if the road was not built on account of failure to secure additional bonus. Delivery to attorney : Delivery to the attorney, as such, is equivalent to a delivery to the grantde himself; and it is not com- petent for the grantor, or those claiming under him by a subse- quent conveyance, to show by oral evidence that a condition was annexed to the delivery, for the non-performance of which the deed never became operative.' Delivery to granie-e for delivery to third person in escrow : Whether delivery of a deed to the grantee^ to be by him deliverei to a third person in escrow, is not an absolute delivery to the grantee, is a question not conclusively decided. In Braman v. Bingham, 26 N. Y. 483, it is intimated that the delivery is not conclusive. Selden, J., said : " A fatal objection to the third division of the answer, as a defense, is that it shows that the deed was delivered to the grantee, to be held by him in escrow. It is well settled that such a delivery vests the title in the grantee, although it may be con- trary to the intention of the parties. Lawton v. Sager, 1 1 Barb. 349; Worrall v. Munn, 5 N. Y. 229; Gilbert v. N. A. Fire Ins. Co., 23 Wend. 45. The offer of evidence in support of this division of the answer embraced the additional fact, not alluded to in the answer, that the deed was handed to the plaintiff to be delivered to and safely kept by one of the clerks in the register's office. Whether these facts, not pleaded, if material, were admis- sible in evidence may admit of some doubt, but I do not deem it necessary to decide that question. If the answer, in addition to ' Hubbard v, Greeley, Me. ; 24 .\tl. Rep. 799, DEEDS. 28.5 ■what it contains, had embraced those facts, it would not, in my opinion, have presented a defense. It has been held i.n on^e case that a deed may be delivered to the grantee for the purpose of transmission to a third person, to be held by him in escrow until the happening of some event when it should take effect as a con- veyance, and that such delivery would not be absolute. Gilbert v. Fire Ins. Co., 23 Wend. 43. In that case the grantee had deposited the deed with the third person in pursuance of the arrangement, the condition had not been performed, and the grantee made no claim under the deed. The case presented merely the question, whether the grantor still retained an insur- able interest in the premises described in the deed, the nomiftal grantee testifying to the terms in which the deed was delivered to him. Limited to its peculiar circumstances, no fault can be found with the decision ; but if the grantee had retained the deed, claiming that its delivery to him was absolute, and in a contest between him and the grantor, parol proof of a conditional deliv- ery had been offered, I think the result would have been different. If I am wrong in this conclusion, the case discloses an avenue for the overthrow of titles, by parol proof, which was supposed to be closed by the rule to which it would seem to form an exception. The reason given for the rule excluding parol evidence of a con- ditional delivery to the grantee applies to all cases where the delivery is designed to give effect to the deed, in any event, without the further act of the grantor. ' When the words are contrary to the act, which is the delivery, the words are of none effect.' Co. Litt. 36 a. ' Because then a bare averment, with- out any writing, would make void every deed. Cro. Eliz. 884. ' If I seal my deed and deliver it to the party himself, to whom it is made, as an escrow upon certain conditions, etc., in this case, let the form of the words be what it will, the delivery is absolute, and the deed shall take effect as his deed presently.' Shep. Touch. 59; Whyddon's case, Cro. Eliz. 520; Cruise's Dig. Title, 33, Deeds, ch. 2, '80. If a delivery to the grantee may be made subject to one parol condition, I see no gfound of principle which can exclude any parol condition. The deed having been deliv- ered to the grantee, I think the parol evidence that the delivery was conditional was properly excluded. " But there is also another ground on which the evidence was properly excluded. ' It is essential to an escrow that it be d,eltVr ered to a third person, to be by him delivered to the obligee pr , 286 PAROL EVIDENCE. grantee, upon the happening of some event, or the performance of some condition, from which time it becomes absolute.' James V. Vanderheyden, i Paige, 385. By the agreement, as offered to be proved, the deed of Bingham to Brayman was to be held as an escrow until Braman's return, 'and then to be given to Bingham.' A deed thus delivered is not an escrow, although the parties may call it such, because there is no event in which it is to be delivered fo the grantee. A deed so delivered, If not so intended, when deposited, to operate as a deed in presenti, could never have any validity, without a new agreement of the parties. James v. Vanderheyden, supra. " If there were nothing in the case to aid in ascertaining the intention of the parties in making the delivery, beyond the parol proof which was offered, the deed would be held absolute on account of its delivery to the grantee, or it would be held void for want of any delivery; it could not be treated as an escrow." Completeness essential to absolute delivery : But to have the effect of an absolute delivery, the deed must be manifestly and intentionally complete, and the condition of delivery must be purely collateral. Thus in Brackett v. Barney, 28 N. Y. 333, it was held that a mortgage handed by grantor to grantee to be afterwards executed by the grantor's wife, and drawn in form for her execution, is not conclusively delivered in law. Selden, J., said : " The delivery of a deed without acceptance, is nugatory (Crosby v. Hillyer, 24 Wend. 284), and the mere taking of an instrument into his hands by the grantee and retaining it of itself amounts to nothing, where the circumstances show that he did not receive it or hold it as an effective conveyance. The question of delivery, involving acceptance, is always one of intention, depend- ing on the circumstances of the transaction. Bell v. Lord Ingestre, 1 2 Q. B. 3 1 7 ; Chouteau v. Suydam, 2 1 N. Y. 1 79. In some cases the intention is clear, in others it is doubtful ; but the intention always determines the character of the act. An intention to deliver on the one hand and to accept on the other, is necessary to give effect to the instrument. The delivery of a deed by the grantor to the grantee, to be held as an escrow, and to become effectual on the performance of some collateral act, is held to operate as an absolute delivery immediately. But the rule is applicable only when the deed is intended ultimately to take effect as a convey- ance from the force of such delivery, without further act on the DEEDS. 28r part of the grantor. But a deed may be delivered to the grantee to await his determination whether he will accept it or not (Gil- bert V. N. Am. F. Ins. Co., 23 Wend. 43 ; S. C. 35 Am. Dec. 543), or to be examined and returned if found defective (Graves v. Dud- ley, 20 N. Y. 79), and as in the present case, to await complete execution by other parties (Chouteau v. Suydam, supra), without the conclusive inference in any of the cases that such delivery gives effect to the instruments. In every sucK case, when an' absolute delivery was not intended, the grantee would be a mere trustee of the instrument for the grantor." The same was held in Wendlinger v. Smith, 75 Va. 309. See also Chouteau v. Suy- dam, 28 N. Y. 179. So in Harkreader v. Clayton, 56 Miss. 383 ; S. C. 31 Am. Rep. 369, it is said : " The grantor must consent that the deed shall pass irrevocably from his control, and the grantee must accept it. This reasoning' would cover the case of a deed perfect upon its face, but delivered to the grantee on condition that the grantor's wife was to join, but if it goes so far it must be obiter, for the deed was manifestly incompletely executed. Time of delivery : The time of the delivery of a deed or mort- gage may be shown by parol, without regard to the date.* Sec. 90. Capacity. Parol evidence is admissible to impeach a deed, directly or collaterally, by showing lack of capacity in the grantor ; as in case of infancy, insanity, coverture, drunkenness, etc.* ' Moody V. Hamilton, 22 Fla. 298 Bruce v. Slemp. 82 Va. 352. ' Riggan v. Green, 80 N. C. 236; S. C. 30 Am. Rep. 77. Farley v. Parker, 6 Oreg. 105 ; S. C. 25 Am. Rep. 504. Eaton V. Eaton, 37 N. J.'L. 108; S. C. 18 Am. Rep. 716. Dexter v. Hall, 15 Wall, 20. ' Van Deusen v. Sweet, 51 N. Y. 383. Chancellor v. Donnell, Ala. ; 10 So. Rep. 910. Miller v. Finley, 26 Mich. 249; S. C. 12 Am Rep. 306. Young V. Stevens, 48 N. H. 133; S. C. 2 Am. Rep. 202. Woodcock V. Johnson, 36 Minn. 217. Paine v. Aldrich, 133 N. Y. 544. Jackson v. King, 4 Cow. 207; S. C. 15 Am. Dec. 354. Ownigs' case, I Bland Ch. 370; S. C. 17 Am. Dec. 311. Sutton V. Reagan, 5 Blackf. 217; S. C. 33 Am. Dec. 466. Bensell v. Chancellor, 5 Whart. 371; S. C. 34 Am. Dec. 561. Wall V. Hill's heirs, i B. Monr. 290; S. C. 36 Am. Dec. 578. Rogers v. Walker, 6 Pa. St. 371; S. C. 47 Am. Dec. 470. AUis V. Billings, 6 Mete. 415; S. C. 39 Am. Dec. 744. Harbison v Lemon, 3 Blackf. 51; S. C. 23 Am. Dec 376. Matter of Desilver, 5 Rawle, III; S. C. 28 Am. Dec. 645. 288 PAROL EVIDENCE. In Van Deusen v. Sweet, 5 1 N. Y. 378, the Commission of Appeals held that a deed executed by one non compos mentis — which the court in that case defined to mean " totally and posi- tively incompetent " — is absolutely void ; and that where a defend- ant in an action to recover the possession of real property claims under such a deed, the fact of the incapacity of the grantor may be shown by plaintiff to defeat such claim, although no fraud is alleged and such incapacity had not been legally or judicially determined at the time of or prior to the execution of the deed. In Harbison v. Lemon, 3 Blackf. 51 ; S. C. 23 Am. Dec. 376, Blackford, J., said: "The doctrine in England for a long time was that a man should not be permitted to stultify himself. 6d Lit. 247. It was not however originally the law of that country, as is shown in Fitzherbert's Natura Brevium, 202. Nor is it believed to be the law either there or here at the present time." Sec. 91. Consideration — nnexpressed. An unexpressed consideration may be shown by paroU Sec. 93. Consideration — expressed — how far subject to inquiry. Parol evidence is competent to contradict the recital of receipt of the consideration, or to show an additional or different consideration, but not to contradict the deed as to price or quantity." ' Hartley' Lessee v. McAnulty, 4 Yeates, 95; S. C. 2 Am. Dec. 396. McClanahan v. Henderson, 2 A. K. Marsh. 388; S. C. 12 Am. Dec. 412. Nedvidek v. Meyer, 46 Mo. 600. Hannan v. Oxley, 23 Wis. 519. ' O'Neale v. Lodge, 3 Harris & Mc- Henry, 433; S. C. I Am. Dec. 377. Elysville Manf. Co. v. Okisko Co. i Md. Cli. 392- Collins V. Tillou, 26 Conn. 368. Linsley v. Lovely, 26 Vt. 123. McCrea v. Purmort, 16 Wend, 460; S. C. 30 Am. Dec. 103. Witbeck v. Waine, 16 N. Y. 538. McKinster v. Babcock, 26 N. Y. 380 Barker v. Bradley, 42 N. Y. 320. Wilkinson v. Scott, 17 Mass. 249. Goodspeed v. Fuller, 46 Me. 141; S. C. 71 Am. Dec. 572. Harrison V. Castner, 11 Ohio St. 339. Jones. V. Jones, 12 Ind. 389. Holbrook v. Holbrook, 30 Vt. 432. Swafford v. Whipple, 3 Iowa, 261; S. C. 54 Am. Dec. 498. BoUes V. Beach, 22 N. J. L. 680. Hamilton v. M'Guire, 3 S. & R. 355. Pritchard v. Brown, 4 N. H. 400. Bowen v. Bell, 20 Johns, 338; S. C. ii Am. Dec. 286. Watson V. Blaine, 12 S. & R. 131; S. C. 14 Am. Dec. 669. Harvey V. Alexander, i Rand. 2ig; S. C. 10 Am. Dec. 519. Tyler v. Carlton, 7 Grqenl. 175; S. C. 20 Am. Dec. 357. DEEDS. 289 This doctrine is put by Mr. Smith (Lead. Cas. 723), on the ground that " the deed is not the contract ; and that its object is to transfer the title to the purchaser, and not to state the terms on which he bought." The later New York cases reverse the doctrine of Schermehorn v. Vanderheyden, I Johns. 139; S. C. 3 Am. Dec. 304; which was declared with very little expressed consideration. The early New York doctrine was also laid down in Betts v.TJnion Bank of Maryland, i Harr. S: G. 175 ; S. C. 18 Am. Dec. 283; Graves v. Carter, 2 Hawks, 576; S. C. 11 Am. Dec. 786; Harrison v. Laverty, 8 Mart. 213; S. C. 13 Am. Dec. 283 ; Clarkson v. Hanway, 2 P. Wms. 203 ; McCampbell v. Durst, 73 Tex. 410. Parol evidence that a deed purporting to be for a consideration was without consideration is inadmissible as between the parties.' Non-payment of a nominal consideration may not be shown to, defeat a deed.^ It is well settled that the consideration clause is open for explanation for any purpose except to defeat the con- veyance.* The only effect of the statement of consideration and its payment is to estop the grantor from denying any considera- tion, and to prevent a resulting trust in him.* Peck V. Vandenberg, 30 Cal. 23. Oliver v. Oliver, 4 Rawle, 141; S. C. 26 Am. Dec. 123. Beach v. Packard, 10 Vt. 96; S. C. 33 Am. Dec. 185. Depeyster v. Gould, 2 Green Ch. 474; S. C. 29 Am. Dec. 723. Groves v. Steel, 2 L. Ann. 480; S. C. 46 Am. Dec. 551. Rockhill V. Spraggs, g Ind. 30; S. C. 68 Am. Dec. 607. Collins V. Tillou's Adm'r, 26 Conn. 368; S. C. 68 Am. Dec. 398. Buckley's Appeal, 48 Pa. St. 491 ; S. C. 88 Am. Dec. 468. Sullivan v. Lear, 23 Fla. 463; S. C. 11 Am. St. Rep. 388. Booth V. Hynes, 54 111. 363. Howell V. Moores, 127 111. 67. Parker v. Foy, 43 Miss. 260; S. C. 55 Am. Rep 484. Adams v. Lambard, 80 Cal. 426. Murdock v. Cox, 118 Ind. 266. Scogginv. Schloath, 15 Oreg. 380. Wood V. Moriarity, 15 R. I. 518. Kickland v. Menasha Co. 68 Wis. 34. Wheeler v. Billings, 38 N. Y. 263. McConnell v. Brayner, 63 Mo. 461. Bolles V. Beach, 22 N. J. L. 680. Schillinger v. McCann, 6 Greenl. 364. Hebbard v. Haughian, 70 N. Y. 54. Baldwin v. Dow, 130 Mass. 416. Holmes' Appeal, 79 Pa. St. 279. Burnham v. Dorr, 72 Me. 198. Fall V. Glover, Neb. ; 52 N. W. Rep. 168. Union M. L. Ins. Co. v. Kirchoff, 133 111. 368; 27 N. E. Rep. 91. ' Gardner v. Lightfoot, 71 Iowa, 577. Feeney v. Howard, 79 Cal. 525. Salisbury v. Clarke, 61 Vt. 453. Hammond v. Woodman, 41 Me. 177; S. C. 66 Am. Dec. 219. ' Meriam v. Harsen, 2 Barb. Ch. 267. Draper v. Shoot, 25 Mo. 197; S. C. 69 Am. Dec. 462. ' Murdock v. Gilchrist, 52 N. Y. 247. * Hebbard v. Haughian, 70 N. Y. 54. Goodspeed v. Fuller, 46 Me. 141. 290 PAROL EVIDENCE. Chief Justice Appleton has said on this point : " It may be shown that the price of the land was less than the consideration expressed in the deed, as in Bowen v. Bell, 20 Johns. 338 ; or that it was more, as in Belden v. Seymour, 8 Conn. 304; or that it was contingent, dependent upon the price the grantee may obtain upon a resale of the land, as in Hall v. Hall, 8 N. H. 129 ; or that it was in iron when the deed expressed a money-consid- eration, as in McCrea v. Purmort, 16 Wend. 460; or that no money was paid, but that it was an advancement, as in Meeker v. Meeker, 16 Conn. 387 ; or that a portion of the price was to be paid by the grantee and the balance was an advancement, as in Hayden v. Mentzer, 10 S. & R. 329 ; or that it was paid by some one other than the grantee, and thus raise a resulting trust, as in Scoby V. Blanchard, 3 N. H. 170; Pritchard v. Brown, 4 N. H. 397 ; Dudley v. Bosworth, 10 Humph. 9." " The entire weight of authority tends to show that the acknowledgment of payment in a deed is open to unlimited explanation in every direction.'" Illustrations: i. In Louisville, etc. Ry. Co. v. Neafus, — Ky, — , 18 S. W. Rep. 1030, it was held that though the expressed consideration of a deed to a railroad company is " benefit to be derived from the building of the road and one dollar paid," the grantor may, by parol evidence, show that the real considera- tion was the company's promise to build a depot on the land; the court observing, " there is no rule better settled by this court than the one allowing a party to show, by parol evidence, a consideration in addition to or different from that expressed on the face of a deed or other written memorial of the con- tract." So in Hall v. Solomon, 61 Conn. 476; 23 Atl. Rep. 876, it was held that in an action by the grantors of property to restrain the grantee from using it for the sale of intoxicating liquors, evidence is admissible of a parol agreement that part of the consideration for the grant was that the property should not be used for such purposes. The court observed : " It will be remembered that it is not the office of a deed to express the terms of the contract of sale, but to pass the title pursuant to the contract. Therefore a parol agreement, being a part of the con- sideration for the sale, restricting the use of the premises in one particular for a limited period, is not merged in the deed, and does not qualify or in any >vay affect the title to the land ; and ' Goodspeed v. Fuller, 46 Me. 141. DEEDS. 291 the admission of parol evidence to prove such an agreement is no infringement of the rule that parol evidence is not admissible to contradict, vary, or explain a written instrument. Collins v. Tillou, 26 Conn. 368 ; Pierce v. Woodward, 6 Pick. 206 ; Willis v. Hul- bert, 117 Mass. 151 ; Tallmadge v. Bank, 26 N. Y. 105." 2. In Fechheimer v. Fronstine, 15 Colo. 386, the court said : " As a general rule, the consideration recited in an instrument under seal, as well as in a simple receipt, is prima facie evidence only, and may be controlled or rebutted by parol proof. It is now firmly established that such recitals stand upon a distinct basis, and are merely prima facie evidence against the party mak- ing them. They are like ordinary receipts which are open to explanation by parol. This question has been frequently before the courts, and the rule in favor of the admissibility of such evi- dence is now well settled. That this is true of ordinary receipts for money, there can be no doubt. This is said by Dr. Wharton to be ' a necessary consequence of the informality of such instru- ments.' 2 Whart. Ev., § 1064. The same rule has been applied in many cases to the consideration clause in a deed under seal. See Wilkinson v. Scott, 17 Mass. 249; Clapp v. Tirrell, 20 Pick. 247; Thayer v. Viles, 23 Vt. 494; White v. Miller, 22 id. 380; Belden v. Seymour, 8 Conn. 304; Bowen v. Bell, 20 Johns. 338; Bassett v. Bassett, 55 Me. 127. In Wilkinson v. Scott, supra, it was held that a receipt was always open to explanation, and the fact that it was under seal did not change the rule ; and although a grantor was estopped by his deed to deny that he granted or that he had a good title to the estate conveyed, yet he was not bound by the consideration expressed ; but that the real consid- eration might be proven. In Clapp v. Tirrell, supra, it was held, that the consideration expressed was on\y prima facie evidence of payment, and that it might be controlled and rebutted by proof. And in Thayer v. Viles, supra, it was held that the recitals in a deed of the amount of the consideration and its receipt will not estop a party from sustaining an action for the price. In White v. Miller, supra, it was decided that such recitals were subject to explanation. In Belden v. Seymour, supra, it was said : ' The only operation of a clause in a deed regarding the consideration is to prevent a resulting trust in the grkntor, and to estop him forever to deny the deed for the uses therein mentioned.' We deem further reference to authorities unnecessary. It is sufficient to say that it is clearly established by the great weight of author- 292 PAROL EVIDENCE. ity, that as a general rule, the consideration in an instrument under seal, as well as in a simple receipt, may be explained by parol evidence." Parol evidence that the consideration of a transfer of real estate was an oral agreement to pay certain debts of the grantor is not inadmissible as tending to create a trust by parol.'' Where a deed is assailed for fraud, parol evidence is com- petent to show whether an additional consideration was paid.^ A deed expressed to be in consideration of natural love and affection may be shown to have been for a valuable consideration.^ 3. In Ludeke v. Sutherland, 87*111. 481 ; S. C. 29 Am. Rep. 66, land was deeded as " containing 140 acres more or less," and was paid for at the orally agreed price of $27 an acre, and the consideration stated in the deed was the amount of that quantity at that price. Before the execution of the deed it was orally agreed that the land should be surveyed, and if it exceeded that quantity the purchaser should pay for the excess, and if it fell short the vendor should refund for the deficiency, at that rate. The quantity proving to be in excess, held, that the vendor was entitled to recover therefor, and that oral evidence was competent to prove the agreement.* 4. In Bladen v. Wells, 30 Md. 577, the court said: "We have found no case where the grantor has been allowed to aver, as against the grantee, that the amount of the consideration money, expressed in the deed as the price for the land thereby conveyed, is not the true contract between them in this particular, and there is no reason why any parol contract varying the deed in this respect should not be excluded by the general rule as much as if it varied the deed in any other part, and such have been the repeated decisions of courts of the highest authority." The reasoning of Ludeke v. Sutherland, supra, is that " the deed does not purport to embody the contract of the parties; it simply conveys the land in question in part fulfillment of the parol agree- ment. The statement of the consideration is in no sense a part ' Brice v. Miller (S. C), 15 S. E. Rep. 87 N. Y. 327; S. C. 41 Am. Rep. 272- 371- "^ Casto V. Fry, 33 W. Va. 449. To the contrary : Bradley v. Blodget, ' Nichols V. Burch, 128 Ind. 324; 27 N. Kirby, 22; S. C. i Am. Dec. 11; E. Rep. 737. Martin v. Hamlin, i8 Mich. 354; •• To the same effect: Mott v. Hurd, i Bladen v. Wells, 30 Md. 577; North- Root, 73; Green v. Vardiman, 2 rop v. Speary, i Day 23; S. C. 2 Blackf. 324. See Paine v. Upton, Am. Dec. 48. DEEDS. 293 of the terms of the deed," and the "verbal agreement remains an integer in full force, and may be proved by parol." 5. In Flynn v. Bourneuf, 143 Mass. 277 ; S. C. 58 Am. Rep. 135, an action for breach of covenant against incumbrances in a deed, parol evidence that a few days before the execution of the deed the parties orally agreed, that in consideration of the execu- tion of the deed for a certain sum, the plaintiff would assume a liability to an assessment upon the land for betterments, was held inadmissible, upon the ground that it directly contradicted the covenant. Precisely to the same effect is MacLeod v. Sidles, 8 1 Mo. 595 ; S. C. 51 Am. Rep. 254. 6. In Kickland v. Menasha Wooden Ware Co., 68 Wis. 34 ; S. C. 60 Am. Rep. 831, where an agent authorized to buy land, paid the sum mentioned in the deed, but orally agreed to pay more in the future, the principal, accepting the deed, was held liable for the additional consideration. 7. The consideration respectively paid by grantees may not be shown by parol for the purpose of showing that they took in different proportions.' Where a deed recites a money considera- tion it may be shown to have been the grantee's promise to execute a will in favor of the grantor.^ And so his acknowledg- ment, before and after the execution of the deed, that it was in full of all claims against the grantor, including that in suit.' An absolute mortgage on land may be shown to have been executed as a mere indemnity on future advances.* The grantee may show that the sum paid was also in full of a claim against him for trespass on the land.* " The principal contract is not varied," said the court, " but is made to be the ground-work or considera- tion of another contract." 8. It may be shown by- parol that the grantee bought with knowledge of a right of way over the land.* The court said : " The subject matter of the conveyance, its conditions and pecu- liarities, may be explained by parol without any contradiction of a deed. Do we contradict the conveyance of a tract of land when we permit it to be proved by parol that it is covered with timber, ' Treadwell v. Bulkley, 4 Day, 395 ; S. Kimball v. Myers, 21 Mich. 276 ; S. C. C. 4 Am. Dec. 225. 4 Am. Rep, 487. ' Manning v. Pippen. 86 Ala. 357. * Moses v. Hatfield, 27 S. C. 324. See Kimball v. Myers, 21 Mich. 276 ; ' Hodges v. Heal, 80 Me. 281 ; 14 Atl. S. C. 4 Am. Rep. 487. Rep, 11. ' Groves v. Steel. 2 La, Ann. 480 ; S. C. ' Wilson v. Cochran, 48 Pa. St. 107 ; S. 46 Am Dec. 551. C.'86 Am. Dec. 574. 294 PAROL EVIDENCE. or is an improved farm, or contains a water-power, or has a private road upon it ? " And so parol evidence is admissible to show that the grantee took the land subject to an incumbrance of which he knew,' "as part of the res gestm, to prove the state of facts exist- ing at the time of the conveyance." Citing Leland v. Stone, lo Mass. 459. Where an incumberance is not made a part of the consideration, and not deducted from it, and where it is not assumed by the grantee, the recital in a deed that the conveyance is subject to an incumbrance does not estop the grantee from showing that what purports to be an incumbrance is not one in fact, because of its invalidity.^ Where a mortgage is conditioned as security for " any indebtedness," evidence may be adduced to show that it contemplated future indebtedness.^ Contrary cases: In a few jurisdictions the rule subjecting the consideration clause to contradiction or explanation is denied. Thus, in Wilkinson v. Wilkinson, 2 Dev. Eq. 377, it is said : " The consideration upon which a deed is made is an important part 4i the contract ; and when it is distinctly declared, parol evidence is not more admissible to contradict or substantially to vary that, than any other terms upon which the parties have expressed their agreement." So in Houston v. Blackman, 66 Ala. 559 ; S. C. 41 Am. Rep. 756, it was held that a deed of lands from husband to wife, expressed to be in consideration of love and affection, and one dollar paid, is voluntary as to then existing creditors of the husband, and if assailed by them, parol evidence is incompetent to show a valuable consideration. In Christopher v. Christopher, 64 Md. 583, it is said: " It is a settled principle, that when a sum of money is named as the consideration in a deed, proof of a con- sideration, different in kind, is inadmissible. Hum's Lessee v. Soper V. 6 H. & J. 276; Betts v. Union Bank of Maryland, i H. & G. 175 ; Cole v. Albers, i Gill. 412 ; Thompson v. Corrie, 57 Md. 200. The authorities just cited remove all doubt in relation to ' Allen V. Lee, i Ind. 58 ; S. C. 48 Am. Williams v. Thurlow, 31 Me. 392. Dec. 352. Baldwin v. Tuttle, 23 Iowa, 66. ° Brooks V. Owen, — Mo. — ; 19 S. W. Wood v. Broadley, 76 Mo. 23. Rep. 723, citing : Cummins v. Wire, 6 N. J. Eq. 73. Purdy V. Coar, 109 N. Y. 448. Judson v. Dada, 79 N. Y. 373. Russell V. Kinney, i Sandf. Ch. 34. Parker v. Jenks, 36 N. J. Eq. 398. Hartley v. Tatham, 10 Bosw. 273. Flanders v. Doyle, 16 111. App. 508. Briggs V. Seymour, 17 Wis. 255. Bishop v. Fetch, 7 Mich. 371. Sewing Machine Co. v. Emerson, 115 Martineauv. McCoUum, 4Chand. (Wis.) Mass. 554. 153. Thompson v. Morgan, 6 Minn. 292. ^ Simons v. First Nat. Bank, 93 N. Y. 269. DEEDS. 295 this question, and make it clearly apparent that the doctrine enunciated by the Lord Chancellor in Clarkson v. Hanway, 2 P. Wms. 204, and in Bridgman v. Green, 2 Ves. Sr. 626, has )3een fully recognized in this State. It therefore follows that when a sum of money is named as the consideration in the recital of a deed, it is not competent to adduce evidence tending to show that the real consideration was a gift from the grantor to the grantee." Sec. 93. Consideration — showing deed to be a mort- gage. In equity a deed may be shown by parol to have been intended as a mere mortgage.' Some cases limit the admissibility to equity.^ Others admit the evidence either at law or in equity.' -" Washburn v. Merrills, i Day, 139 ; S. C. 2 Am, Dec. 5g. Hodges V. Tennessee, etc. Ins. Co. 8 N. Y. 416. Ryan v. Dox, 34 N. Y. 307 ; S. C. 96 Am. Dec. 696. Ross V. Norvell, i Wash. 14 ; S. C. i Am. Dec. 422. "Walker v. Walker, 2 Atk. 99. Dixon V. Parker, 2 Ves. Sen. 225. Holmes v. Mathews, 9 Moore P. C. 413. Xangton v. Horton, 5 Beav. g. Joynes V. Statham, 3 Atk. 388. Jackson v. Lodge, 36 Cal. 28. Houser v. Lamont, 55 Pa. St. 311 ; S. C. 93 Am Dec. 755. .Hudson V. Isbell, 5 Stew. & P. 67. Wright V, Bates, 13 Vt. 341. Johnson v. Smith, 39 Iowa, 549. Sweet V. Parker, 22 N J. Eq. 453. Horn V. Keteltas, 46 N. Y. 605. Baiigher v. Merryman, 32 Md. 185. Nichols V. Cabe, 3 Head, 93. Hurford v. Harned, 6 Greg. 362. Snavely v. Pickle, 29 Gratt. 27. Anthony v. Anthony, 23 Ark. 479. Holton V. Meighen, 15 Minn. 69. Ruckman v. Alwood', 71 111. 155. Heath v. Williams, 30 Ind 495.- Xittlewort v. Davis, 50 Miss. 403. Schade v. Bessinger, 3 Neb. 140. Malone v. Roy, 94 Cal. 341. Edrington v. Harper, 3 J. J. Marsh, 354 ; S. C. 20 Am. Dec. 145. Campbell v. Dearborn, 109 Mass. 130 ; S. C. 12 Am. Rep. 671. Klinck V. Price, 4 W. Va. 4 ; S. C. 6 Am. Rep. 268. Morris V. Budlong, 78 N. Y. 543. Hassam v. Barrett, 115 Mass. 256. Logue's Appeal, 104 Pa. St. 136. Peugh V. Davis, 96 U. S. 332. Turpie v. Lowe, 114 Ind. 37. CuUen V. Carey, 146 Mass. 50. Barry v. Hamburg, etc. Co. no N. Y. i. Tower v. Fetz, 26 Neb. 706 ; S. C. 18 Am, St. Rep. 795. Beroud t^ Lyons, — Iowa, — ; 52 N. W. Rep. 486. Barry v. Colville, 25 N. Y. State Rep. 658. ' McClane v. White, 5 Minn. 178. Hogel v. Lindell, 10 Mo. 483. Moore v. Wade, 8 Kans. 380. Bragg v. Massie, 38 Ala. 89; S. C. 79 Am. Dec. 82. * Fuller V. Parrish, 3 Mich. 211. Kent V. Agard, 24 Wis. 378. Plumer v. Guthrie, 76 Pa. St. 441. Johnson v. Sherman, 15 Cal. 287. Peugh V. Davis, 96 U. S. 332. 296 PAROL EVIDENCE. / Contrary doctrine : But in a very few cases it is held that a deed may not be converted into a mortgage in the absence of fraud, oppression, ignorance or mistake.' Sec. 94. Consideration — illegal. But the consideration of a deed may not be impeached on account of its illegality as between the parties. The expression is frequent in the books that a " deed " may be avoided on account of illegality of consideration. But it will be found on examination that the word " deed " in such passages is used in the sense of an executory specialty, and never to indicate an absolute grant of lands. When a party undertakes to enforce a bond on a sealed note or a mortgage, or the like, the defendant may show by parol that the consideration was illegal, because the court will not suffer its process to be used in the accomplishment of a wrong. But if the wrong has been accomplished, the court will not listen to a party to it who seeks to undo his participancy and get back what he has illegally granted. If parties should execute a sealed contract for the sale and purchase of lands, and either party should refuse performance, and the court should be asked to decree specific performance, oral evidence would be com- petent to prove that the consideration was immoral or otherwise in violation of law ; but not so where the executory contract has ripened into performance, although the performance may be an evil fruit. A deed is a mere certificate and evidence of the passing of title, and where title jias passed the court will not tol- erate the grantor in alleging that he parted with his land for an. unlawful compensation.^ The consideration of a mortgage may be shown to be illegal because it is a collateral security to an executory specialty, the bond, and also because the title to the mortgaged lands does not pass without the aid of the court.' So evidence is competent, in an action for foreclosure, to show that a mortgage was given to compound a felony.'' Illustrations: i. In Inhabitants of Worcester v. Eaton, ii Mass. 375, cited in the last case, the court said : " The deed so given was ' Richard v. Harrill, 2 Jones Eq. 209. ^ Jones Mortg. §617. Chaires v. Brady, 10 Fla. 133. MoflStt v. Bulson, Cal. ; 30 Pac. McDonald v. McLeod, i Ired. Eq. 221. Rep. 1022. ' See Chap. on Illegal Agreements. Peed v. McKee, 43 Iowa, 689; S. C. Collins V. Blantern, 2 Wils. 341. 20 Am. Rep 631. DEEDS. 297 not void, nor was it voidable. * * A bond or otner obligation,, or a written promise, founded upon such a consideration, may be avoided, because the law will not uphold a contract, or permit a party to enforce it, if it was made to secure the price of an unlaw- ful act. * * * But it has been holden in numerous other cases, that where money has in fact been paid upon such consid- eration, it cannot be recovered back, because in pari delicto potior est conditio defendentis. * * * If then the composition of a felony, or of a larceny, is an illegal consideration of any promise or obligation for money, the party claiming under such instru- ment cannot enforce it in a court of justice, nor can the other party, if he has paid it, recover it back again. * * * A deed of bargain and sale, signed, sealed, delivered, acknowledged and recorded, is an actual transfer of the land to the grantee, as much as the delivery over of a sum of money, or of a personal chattel, is a transfer of either of those." This case is cited with approval in Mills V. Rice, 6 Gray, 465, where it is said, "if lands are con- veyed in conformity with, or in satisfaction of an illegal contract, the title of the grantee cannot be defeated or disturbed." The same doctrine is laid down in Hale v. Jewell, 7 Greenl. 435 ; S. C. 22 Am. Dec. 212, in respect to an attempt -to avoid a deed for usury, citing Boardman v. Roe's Trustee, 13 Mass. 104, and Flint v. Sheldon, id. 443 ; S. C. 7 Am. Dec. 162 ; and so in Moore v. Adams, 8 Ohio, 372 ; S. C. 32 Am. Dec. 723, in respect to com- pounding a felony. 2. Hill V. Freeman, 73 Ala. 200 ; S. C. 49 Am. Rep. 48, was the case of a deed executed and delivered in consideration of future illicit intercourse. The court said: "The title of the land con- veyed nevertheless passed to the grantees, and being in posses- sion under their deed, they cannot be dispossessed by the heirs of Hill, who can have no greater claim or right than the deceased grantor had. It is plain that such a contract, if unexecuted, could not be enforced in any court. Such was the ruling of this court in Walker v. Gregory, 36 Ala. 180. But the deed being executed and delivered, and the grantees being in possession,, ejectment will not then lie to dispossess them. The maxim applies, in pari delicto potior est conditio possidentis y 3. In Clark v. Colbert, 6"] Ala. 92, the court said : " There can be no question that the composition of the felony, and the dismissal of the prosecution for a valuable consideration, was a highly penal offense, and that all who aided and abetted in its perpetration ■298 PAROL EVIDENCE. were participants in the guilt. Any executory contract, or prom- ise based on' such consideration, is illegal, and no suit can be maintained for its enforcement. Ex turpi causa non oritur actio. No one can recover, who, to establish his claim, must trace his right through such illegal transaction. This is common knowl- edge. Courts can give no sanction to such flagrant violations of law. Add. Cont., § 258 ; i Brick. Dig., 381 ; Collins v. Blantern, I Smith Lead. Cas. [161J and English notes; Benjamin Sales, §§ S03~4- The present case arises however not on an executory, but on an executed contract. The plaintiffs seek to regain prop- ' erty which they conveyed away by deed, on the ground that the consideration was illegal — a violation of positive law. Walker v. Gregory, 36 Ala. 179, was a suit to recover slaves which had been -conveyed to the plaintiff on an immoral consideration. To estab- lish her cause of action, she was forced to rely on the contract, which was founded on such illegal consideration. This court held she could not recover. It was added, that if she had been in possession of the slaves, and the administrator had sought to recover them from her by suit, probably she might have protected .herself under the maxim, potior est conditio possidentis. Denton V. English, 2 Nott. & McC. 581, holds that an executed contract, founded on an immoral consideration, is binding on the parties. In Gray v. Roberts, 2 A. K. Marsh. 208, the court said : ' If both parties are equally guilty of a breach of the law, a court of jus- tice cannot interpose its aid in behalf of either, for- it is a settled rule, that in pari delicto potior est conditio defendentis.' S. C, 12 Am. Dec. 383. In Waite v. Merrill, 16 id. 238 (4 Greenl. 102), it was held that money paid on an illegal contract, voluntarily, knowingly, cannot be recovered back. The case of Inhabitants -of Worcester v. Eaton, 1 1 Mass. 368, is not distinguishable from this." 4. In Myers v. Meinrath, loi Mass. 367 ; S. C. 3 Am. Rep. 368, it was said : ' The policy of the law is to leave the parties in all such cases without remedy against each other.' In i Story Eq. Jur., § 298, is the following language: 'In general (for it is not universally true), where parties are concerned in illegal agreements, or other transactions, whether they are mala prohibita, or mala in se, courts of equity, following the rule of law as to participation in a common crime, will not at present interpose to grant any relief; acting upon the known maxim, ' in pari delicto, potior est conditio defendentis et possidentis.' I say at present, for there has DEEDS. 299 been considerable fluctuation of opinion, both in courts of law and equity on this subject. The old cases often gave relief, both at law and equity, where the party would otherwise derive an advantage from his iniquity. But the modern doctrine has adopted a more severely just, and probably politic and moral rule, which is, to leave the parties where it finds them, giving no relief and no countenance to claims of this sort." 5. In Marksbury v. Taylor, 10 Bush, 519, it was held that an executed contract, based upon illicit sexual commerce, cannot be set aside at the instance of the grantor or his heirs-at-law, who can- not occupy in court a better position than their ancestor through whom they claim. , 6. In Gisaf v. Neval, 81 Penn. St. 356, a man seduced a woman and induced her to subitiit to an operation for abortion, resulting in her serious sickness and suffering. After her recovery he said he would buy her a house for what she had suffered for him. She contracted for a house, he gave her the purchase-money, and she paid for it before and at the time the deed was delivered to her. Held, that no trust resulted to him, by his furnishing the purchase- money. The court said : "That ' an immoral consideration will never support a contract,' as was said by the learned judge of the court below, in that portion of his charge contained in the sixth specification, is doubtless true as an abstract proposition. But it has no application tp this case. The defendant is not seeking to enforce such a contract. The contract, so far as one existed, has been fully executed. This is the case of a man who has wronged a woman, who has made her a compensation for the injury, and who now seeks to recover it back. In this the law will not help 'him. As he has sown, so must he reap." 7. To the same effect, Ayerst v. Jenkins, L. R., 16 Eq. 275 ; S. C, 6 Moak Eng. 756, where Selborne, L. Ch., said : " The volun- tary gift of part of his own property by one particeps criminis to another, is in itself neither fraudulent nor prohibited by law ; and the present is not the case of a man repenting of an immoral purpose before it is too late, and seeking to recall, while its object is yet unaccomplished, a gift intended as a bribe to iniquity. * * * Lord Eldon asked whether there had been any case upon the distinction between a recortipense for past, and a provision for future cohabitation, • where the court, finding the woman in actual possession of the property, has upon that ground had it taken out of her hand ? The distinction,' he added, ' upon the 300 PAROL EVIDENCE. doctrine of premium pudicitm, has prevailed in the case of restraining her from enforcing a security. But I doubt whether there is any instance of taking the property out of her hands, except as to creditors.' " A deed in fraud of creditors may not be impeached by the grantor.' " The consideration expressed in a deed may not be disproved for the purpose of defeating the conveyance, unless it be on the ground of fraud.^ Contrary doctrine : There is very little authority to the con- trary. In Fenwick v. Ratliff's Representatives, 6 T. B. Monr. 154, it was held that a deed might be avoided by parol proof of usury, and the right to impeach the consideration for illegality seems to be implied in Haigh v. Kaye, L. R. 7 Ch. App. 473. And in Reynell v. Sprye, i DeG. M. & G. 672, it is said by Knight Bruce, L. J.: "The rule is settled (and not merely in courts of equity) that a deed ex facie just and righteous, may be vitiated and avoided by alleging and adducing extrinsic evidence to prove that it was founded on a consideration, or had a view or purpose, contravening law or public policy," citing Collins v. Blan- tern, 2 Wils. 341, which was however the case of a bond. This seems to have been also obiter, for the judge himself character- ized the observations as made " perhaps superfluously." The suit was to set aside a deed of lands for fraud and champerty, and the ground of fraud was regarded as sufficient both by the judge above mentioned, and by Vice-Chancellor Wigram, before whom the case was tried (8 Hare, 221, 253). In Trustees v. Dickenson, i Dev. 189, where a deed of slaves was held illegal because the transfer was to Quakers for the pur- pose of effecting an emancipation, the parol evidence was not objected to (see p. 197), and the defendant was a stranger to the deed (see p. 200). Dale v. Roosevelt, 9 Cow. 307, cited as an authority for the admission of parol evidence that the consideration of a deed is unlawful, was an action on a covenant to convey lands. Kemper v. Kemper, 3 Rand. 8, cited to the same doctrine, was an action to stay the sale under a deed of trust ; the deed was held valid ; and what was said on this point was obiter. Wilhite ' Ellis V. Higgins, 32 Me. 34. Getzler v. Saroni, 18 111. 511. Evans v. Herring, 3 Dutch. 243. Beale y. Hall, 22 Ga. 431. Huey's Appeal, 29 Pa. St. 219. ^ Morse v. Shattuck, 4 N. H. 229; S. C. George v. Williamson, 26 Mo. igo. 17 Am. Dec. 419. DEEDS. 301 V. Roberts, 4 Dana, 174, was the case of a bond, and so of Love V. Buckner, 4 Bibb, 506, and Pope v. St. Leger, 5 Mod. 3. Distinction between executory contract and deed: The distinc- tion between an executory contract and a deed in this respect is clearly pointed out in Donley v. Tindall, 32 Tex. 42 ; S. S. 5 Am. Rep. 234: " In Cowen & Hill's Notes to Phil. Ev., part 2, note 304, it is said : ' The rule confining the operation of parol evi- dence within the limits of strict exposition or interpretation assumes that the instrument has a legal existence and is valid.' ' Testimony to show it to be void, is always pertinent, no matter who are the parties or in what court the question arises.' Deeds however cannot be avoided on all the grounds which apply to simple contracts. Hence, what might be a relevant inquiry as to the latter would not necessarily be in respect to the former. But in regard to illegality of consideration, both will usually be found to stand upon the same footing in this particular. It is not my purpose (because it is not necessary in this case) to discuss the correctness of the proposition with respect to deeds. There are however a number of respectable authorities in its support. In the case of Dale v. Roosevelt, 9 Cow. 3I10, a deed was avoided upon proof that the consideration was simoniacal ; ' and in other cases where the consideration was the sale of an office, money won at play, or generally for anything either fnala in se, mala prohibita, contrary to public policy, etc. etc. So it was expressly held in the case of Phelps v. Decker, 10 Mass. 274. In that case it was broadly laid down ' that by the common law deeds of con- veyance or other deeds made contrary to the provisions of a general statute, or for an unlawful consideration, or to carry into effect a contract unlawful in itself, or in consequence of any pro- hibitory statute, are void ab initio, and may be avoided by plea ; or on the general issue non est factum the illegality may be given in evidence. But this in a later case (11 Mass. 375) has been overruled, and the position assumed that a deed of conveyance could not, as such, be avoided by a party on the ground of having been made in consideration of a felony having been compounded. But the distinction is clearly drawn between bonds and contracts sought to be enforced and actual conveyances of lands or other property. It is admitted that the former rnay be avoided, but the latter, it is said, ' are to be treated in all cases as actual trans- ' This is incorrept. The action was to enforce payment of an executory sealed con- tract, 302 PAROL EVIDENCE. fers, so far as the immediate parties are concerned, and governed by the same rule as the payment of money or the delivery of a chattel.' That this case lays down the correct rule I am well satisfied. The principle inflexibly observed in such cases is that courts will neither aid in the execution of an illegal executory contract nor relieve a party who has executed it. A deed is not a bond or simple contract which remains to be executed, but is a thing done, and when done contrary to the prohibitions of the law, or when it consummates an illegal contract, the law leaves the party executing it to the consequences of his illegal act. And for this very reason it is that courts will permit the defense of illegality to be made ; not certainly for the purpose of aiding or benefiting the defendant, but because they will not be instruments in their execution." In Haigh v. Kaye, 7 Ch. App. 453, James, L. J., said : " If a defendant means to say that he claims to hold property given to him for an immoral purpose, in violation of all honor and honesty, he must say so in plain terms, and must clearly put forward his own scoundrelism if he means to reap the benefit of it." Executed transfer: "A completely executed transfer of property, though originally made upon an unlawful consideration, or in pursuance of an unlawful agreement, is afterwards valid and irrevocable both at law and in equity." ^ " It is not competent to contradict the acknowledgment of a consideration paid, in order to afifect the validly of a deed, in creating or passing a title to the estate hereby granted."^ It may not be shown that a deed was executed to stifle a prosecution for perjury. * Sec. 95. Acknowledgment. An acknowledged deed may be proved by parol.* ' Pollock Cont. 324, 333. Moore v. Adams, 8 Ohio, 372 ; S. C. 32 See also Ayerst v. Jenkins, 16 Eq. 275. Am. Dec. 723. Railroad Co. v. Mathers, 71 111. 598. * Munger v. Baldridge, 41 Kans. 236; S. Adams v, Barrett, 5 Ga. 414. C. 13 Am. St. Rep. 273. Setter v. Alvey, 15 Kan. 157. Floyd v. Ricks, 14 Ark. 286; S. C. 58 Dixon V. Olmstead, g Vt. 310. Am. Dec. 374. Dumont v. Dufore, 27 Ind. 263. Webb v. Burney, 70 Tex. 322. Ratcliffe v. Smith, 13 Bush. 172. Westhafer v. Patterson, 120 Ind. 459; ' 3 Wash. Real Prop. *6i4. S. C. 16 Am. St. Rep. 330. » Devlin Deeds, § 807. DEEDS. 30a Sec. 96. Acknowledgment — between the parties. Between the parties to a deed the acknowledgment may be impeached by parol evidence for fraud, collusion, or imposition, but not otherwise.^ So parol evidence is admissible to prove that the grantor did not appear before the acknowledging ofificer.^ Or that the wife's acknowledgment was procured by duress. Parol evidence is not admissible to supply a palpable defect in an acknowledg- ment.^ In the last case the court said : " What the law requires to be done and appear of record can only be done and made to appear by the record itself, or an exemplification of the record." Mr. Wharton says (2 Ev. sec. 1053), "Where an acknowledgment is defective in any of its averments, these may be supplied by parol proof." But the single case cited to support this (Carpen- ter V. Dexter, 8 Wall. 5 1 3), by no means warrants the statement^ as in that case no extrinsic proof was given, but the defect was supplied by reference to the instrument itself, and Mr. Whatrtoft cites several State decisions to the contrary. But parol evidence is admissible to correct a mistaken statement in an acknowledg- ment, for the purpose of effectuating the deed in favor of inno- cent grantees. The acknowledgment of a mortgage of real estate was in the form, " E. County, ss. : Before the subscriber, a justice of the peace of said county," etc. The justice was of C. county, ' Hector v. Glasgow, 79 Pa. St. 79. Kocourek v. Marak, 54 Tex. Boi; S. C. Hartley v. Frosh, 6 Tex. 208. 38 Am. Rep. 623. Hays V. Hays, 5 Rich. 31. ' First Nat. Bank of Harrisburgh v. Paul, Montgomery v. Hobson, Meigs, 437. 75 Va. 594; S. C. 40 Am. Rep, 740. Williams v. Robson, 6 Ohio St. 510. Bamet v. Bamet, 15 S. & R. 72; S. C. Borland v. Walrath, 33 Iowa, X30. 16 Am. Dec. 516. Wannell v. Kem, 57 Mo. 478. Ennor v. Thompson, 46 111. 214. Hourtienne v. Schnoor, 33 Mich. 274. Harty v. Ladd, 3 Greg. 353. Graham v. Anderson, 42 111. 514; S.C. Elliott v. Peirsol, I Pet. 328. 92 Am. Dec. 89. To the same effect : Kerr v. Russell, 69 111. 666; S. C. 18 Bamett v. Shackleford, 6 J. J. Marsh. Am. Rep. 634. 532; S. C. 22 Am. Dec. 100. Cover V. Manaway, 115 Pa. St. 338; S. Watson's Lessee v. Bailey, i Binn. 470; C. 2 Am. St. Rep. 552. S. C. 3 Am. Dec. 462. Green v. Godfrey, 44 Me. 25. Jourdan v. Jourdan, 9 S. & R. 268; S. ' Smith V. Ward, 2 Root, 378; S. C. i C. n" Am. Dec. 724. Am. Dec. 80. Cox v. Holcomb, 87 Ala. 589; S. C. 13 Strauch v. Hathaway, lOi 111. 11; S. C. Am. St. Rep. 79. 40 Am. Rep. 193. Merritt v. Yates, 71 111. 636; S. C. 23 Am. Rep. 128. 304 PAROL EVIDENCE. the land was situated there, and the mortgage was recorded there. Held, (i) that the mortgage was properly on the record, and was a notice to subsequent purchasers ; and (2) that parol evidence was admissible to show that the acknowledgment was taken in C. county.^ Sec. 97. Acknowledgment as to innocent grantees. Parol evidence is inadmissible to impeach the acknow- ledgment as against an innocent grantee without notice. It was so held in Kerr v. Russell, 69 111. 666; S. C. 18 Am. Rep. 634, where it was claimed that the signature of the grantor's wife was forged. The court say: " Is an innocent purchaser for value, without notice of anything of this kind, to suffer? Can she avoid the deed as against him? Reason, justice, common honesty say not. On general principles, a purchaser for value, without notice of any adverse claim or secret equities, cannot be disturbed and we see no reason why the same rule should not prevail in kindred cases.^ The Supreme Court of Illinois, how- ever seem to have reconsidered the doctrine of Kerr v. Russell, above, for in Strauch v. Hathaway, loi III. 11 ; S. C. 40 Am. Rep. 193, they imply that even as against an innocent grantee the acknowledgment may be impeached for fraud. They say : " Mr. Wharton, in discussing this subject in his work upon Evidence, says : ' The true view is that a certificate of acknowledgment is prima facie proof of the facts it contains, if within the officer's range, but is open to rebuttal between the parties by proof of gross concurrent mistake or fraud. In favor of purchasers for valuable consideration without notice, it is conclusive as to all matters which it is the duty of the officer to certify, if within his jurisdiction. 2 Whart. Ev., § 1052. This court has not gone to the full extent of the latter proposition. While we hold the certificate shall not be deemed conclusive in any case so as to cut off all inquiry, yet where there is no evidence of fraud, conspiracy or overreaching of any kind, or anything casting suspicion upon ' Angier v. Schieffelin, 72 Penn. St. 106; Miller v. Wentworth, 82 Pa. St. 280. S. C. 13 Am. Rep. 659. White v. Graves, 107 Mass. 325; S. C. * To the same effect : " g Am. Rep. 38. Kocourek v. Marak, 54 Tex. 201; S. Singer Manf. Co. v. Rook, 84 Pa. St. C. 38 Am. Rep. 623. 442; S. C. 24 Am. Rep. 204. Johnston v. Wallace, 53 Miss. 331; S. See note 14 Moak Eng. 499. 34 Am. Rep. 699. DEEDS. 305 the integrity or honesty of the certifying officer, and the certifi- cate of acknowledgment is in conformity with the statute, it can not be impeached by merely negativing the facts therein stated. Where the controversy is between the former owner and an inno- cent purchaser, as in the present case, before the title of the latter can be thus impeached, the evidence shall be clear and conclusive, excluding every reasonable doubt. The evidence in this case is not of that character." These remarks were obiter, and no men- tion was made of Kerr v. Russell. This is the only expression of this doctrine which I have found. Sec. 98. Explanation of ambig^uities. Parol evidence is admissible to explain an ambiguity in a deed, as to boundaries or other descriptions of land con- veyed, or as to the names or identity of the parties, or as to the date, or any other ambiguity, and to aid in deciph- ering any obscurity in the writing. 1. In Stone v. Clark, i Mete. 378; S. C. 35 Am. Dec. 370, it was held : " When the language used in a deed to describe the premises meant to be conveyed is ambiguous, equivocal or insuf- ficient, the subsequent acts or declarations of the parties, showing the practical construction put upon the words of description by them, may be resorted to for the purpose of ascertaining their intention."^ 2. In Hall V. Davis, 36 N. H. 569, oral evidence was admitted to define the words " Derry old line." The court said : " If the language of the instrument is applicable to several persons, to several parcels of land, to several species of goods, to several monuments, boundaries or lines, to several writings, or the terms be vague or general, or have divers meanings, in all these and the like cases, parol evidence is admissible of any extrinsic circum- stances tending to show what person or persons, or what things ' Cited in Linney v. Wood, 66 Tex. 22. Frost v. Spaulding, ig Pick. 445 ; S. C. To the same principle, Jackson v. Per- ' 31 Am. Dec. 150. rine, 35 N. J. L. 137. Hastings v. Stark, 36 Cal. 122. Den V. Van Houten, 2 Zab. 61. Wheelock v. Moulton, 15 Vt. 519. Opdyke V. Stephens, 4 Dutch. 283. Raymond v. Coffey, 5 Greg. 132. Livingston v. TenBroeck, 16 Johns. 14; Gratz v. Beates, 45 Pa. St. 495. S. C. 8 Am. Dec. 287. Kennedy v. Lubold, 88 Pa. St. 246. Crafts V. Hibbard, 4 Mete. 438. Stewart v. Patrick, 68 N. Y. 450. Choate v. Burnham, 7 Pick. 274. Wood v. Boyd, 28 Ark. 75. 306 PAROL EVIDENCE. were intended by the party, or to ascertain his meaning in any other respect ; and this without any infringement of the general rule, which only excludes parol evidence of other language, declar- ing the meaning of the parties, than that which is contained in the instrument itself." This was approved in Putnam v. Bond, lOO Mass. 58 ; S. C. I Am. Rep. 82, where evidence was admitted to define " Shirley line " and " Lunenburg line." 3. In Miles V. Barrows, 122 Mass. 581, the court said: "A conveyance of land can only be by deed, and parol evidence is not admissible to control or vary a deed. If the description in it is certain and unambiguous, it is not competent to prove that the parties had any intention different from that expressed. But if upon applying the deed to the land, it is found to be ambiguous, parol evidence of the surrounding circumstances and of the acts of the parties is competent to aid in the interpretation of the deed, and to enable the court to ascertain what was the intention of the parties in the words which they have used." So in Blow V. Vaughan, 105 N. C. 198, where there was a covenant to convey part of a five-hundred-acre tract, with a reference to lines of a previous conveyance, evidence was admitted to fix the quantity and boundaries.' 4. In Lanman v. Crooker, 97 Ind. 163 ; S. C. 49 Am. Rep, 437, a mortgage was executed upon land, excepting " twenty acres from the north-east corner of said above-described tract of land, formerly deeded to Wm. Davis and Emeline M. Davis." In an action to recover the said twenty acres, held, that parol evidence was admissible to show that the twenty acres intended to be excepted was not in the north-east corner, but off the south end. The court said : " The mortgage embraced the entire west half of the quarter section except twenty acres. These are described as ' twenty acres from the north-east corner, * * * formerly deeded to Wm. Davis and Emeline Ann Davis.' This descriptiort contains two calls — one as land in the ' north-east corner,' and the other as land ' formerly deeded to Wm. Davis and Emeline Ann Davis.' If this land was never deeded, as stated, then both calls are not correct descriptions, one or the other is false, and if one is true and the other false, the false must be rejected and the description read as though it did not contain the false call. Worthington v. Hylyer, 4 Mass. 196; Wuesthoff V. Seymour, 22 N. J. Eq. 66; Piper v. True, 36 Cal. 606. The first call cannot be said to be false unless the sec- ' Cock V. Taylor, 2 Overton, 49; S. C. 5 Am. Dec. 650. DEEDS. 307 ond is true and is different from the first. The falsity of the first is not shown by the language of the description itself, but this may be shown by evidence aliunde. Harris v. Doe, 4 Blackf. 369 ; Symmes v. Brown, 13 Indj 318. * * * The deed offered in evidence showed that twenty acres of this land had formerly been deeded to Amelia Davis. This conveyance corresponds with the description except the names. In this respect there is a variance, but this variance does not, as we think, vitiate the description and render it inapplicable to this land. Without the names the description shows that twenty acres of the land had been formerly deeded, and this conveyance satisfies the description in the absence of proof that some other conveyance had been made to these persons. In Getchell v. Whittemore, 72 Me. 393, a similar question arose. The defendant executed a mortgage upon certain real estate, except a lot which was described as having been con- veyed to him by Roswell Hitchcock. Roswell Hitchcock had not conveyed the lot to him, but Urban L. Hitchcock had, and it was held that though the name was different, this fact did not vitiate the description, and that the same applied to the lot actually con- veyed. In Abbott V. Abbott, 51 Me. 575, the land conveyed was described 'as surveyed by Israel Johnson and Isaac Boynton.' They had not surveyed the land, but one Harvey had, and the court held that though the names were different, it was a question of fact whether the Harvey line was not intended. No greater variance exists in this case than in the above cases. After drop- ping the names an equally sufficient description remains, and this description applie? to the land embraced in the conveyance. Whether it was so intended depends upon the proper construc- tion of the description in the light of the attending circumstances. These may be shown, as has been said, by extrinsic evidence ; it may be shown that the twenty acres formerly deeded was off the south end, and not out of the north-east corner. Thus, if the premises are bounded by land of A. on the north, and A.'s land is on the south, it may be proved that it was intended as the southern boundary. White v. Eagan, i Bay (S. C), 247. So if bounded on 'Broad river,' it may be proved that 'Catawba river,' was intended. Middleton v. Perry, 2 Bay, 539. Abbott V. Abbott, supra. The evidence excluded tends to show that no other land was ' formerly deeded,' and hence tends to show that the excepted land was not in the north-east corner. If no other land was deeded, we have two conflicting descriptions, one 308 PAROL EVIDENCE. describing twenty acres in the north-east corner, and the other twenty acres off the south end. One or the other must be rejected, as obviously both were not intended. The rule in such cases is to apply the description to the land actually owned, and to adopt such construction as best comports with the manifest intention of the parties and the circumstances of the cage. Drew v. Drew. 28 N. H. 489; Piper v. True, suprci ; Bell v. Sawyer, 32 N. H. 72. Applying this rule, in the light of the facts, the excluded evidence tended to prove, we think it manifest, that these parties intended to except twenty acres off the south end. The mortgage embraced the entire west half except twenty acres ; the mortgagors owned the entire west half except twenty acres ; they excepted twenty acres formerly deeded ; the twenty acres formerly deeded were off the south end, and it is therefore apparent that they intended to except such twenty acres. This conclusion is also strengthened by the presumption that they intended to mortgage their own land, and not the land of another. As the evidence excluded tended to show that the second call was true and the first false, the first may be rejected without impairing the description, Worthington v. Hylyer, jw/ray Ousby v. Jones, 73 N. Y. 621. The fact that the twenty acres in the north-east corner had not been ' formerly deeded ' created a latent ambiguity, and as the evi- dence offered tended to remove it, the court erred in excluding it," To the same effect, Clark v. Munyan, 22 Pick. 410; S. C. 33 Am. Dec. 752. 5. Where the grant was of the " south fractional half of frac- tional section twenty-nine," etc., oral evidence was admitted to identify the premises.^ A deed conveyed " a certain tract or parcel of land, * * * containing, by estimation, 890 acres of land," lying in a named land district " on Cow bayou and Bull Hide streams, patented to the heirs of James Stewart for 960 acres." Held, that the deed was not void on its face for insuf- ficiency of description, and it appearing that two tracts in the same vicinity were patented to the heirs of James Stewart for 960 acres, it was for the jury to determine whether the tract de- scribed was the one sued for.^ Where a deed conveyed land as a numbered block, as marked on the plat of the grantor's addition to a town, this evidences the existence as against him of such a plat ; and evidence tending to show a survey of the town prior to ' Swayne v. Vance, 28 Ark. 282. ' Cox v. Hart, 12 Sup. Ct. Rep. 962. See also Cato v. Stewart, id. 146. DEEDS.. 309 the conveyance, and that the grantor produced the plat in ques- tion some years afterwards as such plat, is sufficient to identify it as that mentioned in the deed.* 6. In Summerlin v. Hesterly, 20 Ga. 689; S. C. 65 Am. Dec. €39, parol evidence was admitted to show in ejectment for frac- tional lot number 189, to supplement an execution and levy on "fractional lot, whereon John Smith now lives, No. 181," that at the time John Smith lived on lot 189 and that it was a fractional lot. In French v. Hays, 43 N. H. 30; S. C. 80 Am. Dec. 127, declarations of a party were admitted to determine to which of two paths an ambiguous description in a partition deed was intended to apply. In Haven v. Brown, 7 Greenl. 421 ; S. C. 22 Am. Dec. 208, to show what was the language in a bond for a deed, the writing being obscure and worn, parol evidence of declarations of a party at and immediately after the execution thereof were allowed. In Emery v. Webster, 42 Me. 204; S. C. 66 Am. Dec. 274, parol evidence was allowed to show the mean- ing of the words " old channel " of a stream, on the principle of the identification of monuments. So of "swamp land."" So of "any lot on the plat in the town of South Bend."' Parol evi- dence is permitted to show the true date of a deed, where the name of the month is obscure.* And so to supply the date in an undated mortgage.^ And to show quantity and boundaries when the deed is silent.* In Prentiss v. Brewer, 17 Wis. 635 ; S. G. 86 Am. Dec. 730, extrinsic evidence was received to show that by the words " south half" of a certain quarter section, the parties riieant one-half in area and not one-half according to the government survey. And in Lego v. Medley, 79 Wis. 211; S. C. 24 Am. St. Rep. 706, to locate " one acre from the southwest cor- ner of the southwest quarter of the southwest quarter of section 10, together with the buildings thereon." In Palmer v. Farrell, 129 Pa. St. 162 ; S. C. 15 Am. St. Rep. 708, evidence was allowed to show that a " bank " referred to as a boundary was artificial, and that the grantee knew that certain flats were reserved. In Price V. Ferguson, 66 Miss. 404, the language being " Ten acres in S. E. M of N. E. M sec. 33, same being all S. E. Ji 'except the ' Redd V. Murry, — Cal. — ; 24 Pac. * Fenderson v. Owen, 54 Me. 372; S. C. Rep. 841. 92 Am. Dec. 551. ^ Morton V. Jackson, i Sm. & Marsh, 494; ' Burditt v. Hunt, 25 Me. 419; S. C. 43 S. C. 40 Am. Dec. 107. Am. Dec. 289. ^ Colerick v. Hooper, 3 Ind. 316; S. C. ' Cock v. Taylor, 2 Overton, 49; S. C. 5 56 Am. Dec. 505. Am. Dec. 650. 310 PAROL EVIDENCE. interest of Martin (17 acres) and Hunter (13 acres)," evidence was admitted to apply it. In Black v. Pratt, etc., Co., 85 Ala. 504, land being conveyed only by numbers of section, township, and range, with the addition of " all that part lying south of Black creek," parol evidence was admitted to identify it. In Giddings V. Lea, — Tex. — ; 19 S. W. Rep. 682, where a sheriff's deed described land as "one-third of a league of land known as survey No. 290, on David's creek, a branch of the Colorado river, about one mile from the mouth of said river, and about twelve miles from the mouth of the Concho, described in letters patent dated the 15th day of October, A. D. 185 1," parol evidence was em- ployed, to identify the land. In Wead v. St. Johnsbury, etc., R. Co., — Vt. — ; 24 Atl. Rep. 364, it was held that where the owners of land convey it, bounding it by the line of a highway, parol evidence is admissible to show whether, by such description, the parties meant the surveyed line of the highway, or the line as actually used and occupied. So to show that the quantity of water on each side of an island was such as to be called by the name of a river given in the deed, and then to explain this am- biguity by showing which stream was intended.^ So to show what was usually let or occupied with the premises conveyed, when it is not apparent on the face of the deed.^ So to repair an insufficient description of the grantees, and supply the number of the block.^ Reputation is sufficient to show the locus in quo when not clearly shown by the deed.* 7. In Bybee v. Hageman, 66 111. 519, the description in a mortgage was "one acre and a half in the northwest corner of section five, together with the brewery," etc. Inasmuch as there were several sections of that number in the county, parol evi- dence was held admissible to locate the premises. So similar evidence was admitted in Shore v. Miller, 80 Ga. 93 ; S. C. 12 Am. St. Rep. 239, to explain "parts" of certain lots. The court said it was " admissible to explain an ambiguity, whether latent or patent.'"^ So parol evidence was intended to show ' Claremont v. Carlton, 2 N. H. 369; S. ' See also Deery v. Cray, 10 Wall. 263. C. 9 Am. Dec. 88. Hoar v. Goulding, Ii6 Mass. 132. " Hall V. Benner, i P. & Watts, 402; S. Dunham v. Gannett, 124 Mass. 151. C. 31 Am. Dec. 394. O'Farrel v. Harney, 51 Cal. 125. ° Young V. Lorain, 11 111. 624; S. C. 52 Maguire v. Baker, 57 Ga. 109. Am. Dec. 463. Beal v. Blair, 33 Iowa, 318. ' Davis V. Fuller, 12 Vt. 178; S. C. 36 Kimball v. Brawner, 47 Mo. 398. Am. Dec. 334. Wills v. Leverich, 20 Oreg. 168. Dorgan v. Weeks, 86 Ala. 329. DEEDS. 311 what was intended by " the west half of lot "]&" in a township.' And by "at or near a tree."^ And by " Pelican Beach." ^ In Kirkpatrick v. Brown, 59 Ga. 450 (1877), parol evidence was ad- mitted that in the terms " rights, members and appurtenances," the parties intended to include the joint use of an alley between two lots. In Putnam v. Smith, 4 Vt. 622, the case of a grant reserving "all freestone," parol evidence was admitted to show that the parties intended only loose stone on the surface of the land, and not a ledge afterward discovered. Where a deed con- veys " all those parcels of land sold to " the grantor by a third person, who it appeared contracted to sell more than he conveyed, oral eyidence was alowed to explain whether the deed conveyed what was described or only what was conveyed.* Parol evidence was admitted to show that the shape of a specified quantity of land, with the buildings thereon," excepted out of the corner of a tract conveyed, was not square.* Parol evidence was admitted in Doolittle v. Blakesley, 4 Day, 265; S. C. 4 Am. Dec. 218, to show that in " the farm on which he dwelt," the grantor did not include a separate, uninclosed, wild piece of land. " The term ' farm,' as to extent, is indefinitive and ambiguous." And so to show the reasonable width of a right of way reserved in a deed and described as " about five feet in width." ^ Where a legal boundary between two towns differed from that generally recog- nized, and a deed described it in terms equally applicable to either, parol evidence was admitted to explain the ambiguity.'^ But in ejectment it was held inadmissible to show that perches were intended where degrees were mentioned.* Parol evidence is admissible to show that " mines and minerals" includes paint- stone, but not to show that the parties intended only copper ore.' 8. Parol evidence was admitted to show that by " Brown " the grantor intended " Bowen " as the grantee." So in Houston V. Bryan, 78 Ga. 181 ; S. C. 6 Am. St. Rep. 252, to show that by ' Pettit V. Shepard, 32 N. Y. 97. ' Putnam v. Bond, 100 Mass. 58; S. C. i ° Stewart v. Patrick, 68 N. Y. 450. Am. Rep. 82. ' Coleman v. Manhattan B. I. Co., 94- ' Clarke v. Lancaster, 36 Md. ig6; S. C. N. Y. 229. 11 Am. Rep. 486. * Bradish v. Yocum, 130 111. 386. ' Hartwell v. Camman, 2 Stockt. Ch. 128; ' Lego V. Medley, 79 Wis 211; S. C. 24 S. C. 64 Am. Dec. 448. Am. St. Rep. 706. " Bowen v. Slaughter, 24 Geo. 338; S. C. • Atkins V. Bordman, 2 Mete. 457; S. C. 71 Am. Dec. 135. 37 Am. Rep. 100. 312 PAROL EVIDENCE. " child," in a trust deed, the grantor intended a child by a former husband. So in Lessee of Pillsbury v. Dugan's Admr., 9 Ohio, 117; S. C. 34 Am. Dec. 427, to show that "Pillsby" meant " Pillsbury," and that " David C." meant " David A."* So that " Eli Nicks," a grantor, was " Elias Nicks " named in a patent.* But in Pitts v. Brown, 49 Vt. 86 ; S. C 24 Am. Rep. 1 14, in eject- ment similar evidence was excluded to show that Rufus V. and Russel V. were the same grantor, and that the latter name was written in the deed by mistake, on the ground that the deed could not thus be reformed in a court of law. In Begg v. Begg, 56 Wis. 534, the court said: "Where the grantee in a deed of land has a name borne by two persons, parol evi- dence is admissible to show which person was intended. In Thompson v. Jones, 4 Wis. 106, where the deed described the premises as in the northwest quarter section, it was allowed to be proved by parol that the southeast quarter section was intended ; or as in Atwater v. Schenck, 9 Wis. 160, where the county and state were omitted in the description of the land, it was allowed to be shown that the land imperfectly described and claimed was the land intended to be conveyed; or as in Staak v. Sigelkow, 12 Wis. 234, where the deed was made by the wrong baptismal or Christian name, it was allowed to show by parol who was the person intended ; or as in Schmitz v. Schmitz, 19 Wis. 207, where in case of the division of a lot, the half intended to be set off to the party was shown by the fact of possession being taken at the time of the division, and by the parol agreement of the division ; or as in Sargeant v. Solberg, 22 Wis. 132, where the mortgage was for wood piled on a certain lot by number, parol evidence was allowed to show the wood intended to be mortgaged ; or as in Bancroft v. Grover, 23 Wis. 463, where in an arbitration award a certain note was described by the wrong name, evidence was allowed as to the person intended. See also Harding v. Coburn, 12 Mete. 333 ; Milwaukee, etc., R,. Co. v. Milwaukee, etc., R. Co., 20 Wis. 174." Where land was located under a bounty warrant issued to " William Heronymus," a single man, for military ser- vices in 1836, and plaintiffs claimed title to the same as the heirs of " William Hieronymus,'' evidence that the latter was a single man, who died about the year 1836, was held sufficient to estab- ' McDuffie V. Clark, 17 N. Y. St. Rep. ' Henderson v. Hackney, 23 Ga. 383; S. 356. C. 68 Am. Dec. 529. DEEDS. 313 Wsh prima facie the identity of their ancestor and the one to whom the certificate was issued.' 9. Parol evidence was admitted to show that the description of a mortgage, in an assumption clause in a deed, as executed by G. and wife, was intended for D. and wife.^ The court said : " This is therefore a case where parol evidence may be given to apply the covenant to the subject-matter. There was no other mortgage of that date or amount. Indeed, this was the only mortgage upon the premises. The court could take proof of the surrounding circumstances for the purpose of applying the cove- nant to the mortgage actually intended, and, a reformation of the contract was not needful." 10. Evidence is inadmissible to prove that the grantee named is not the one intended by the grantor.* In the case of.a deed to a specified person "and her heirs," parol evidence is incompetent to show for what purpose and to whom the deed was intended to pass title.* In the fifteenth edition of Greenleaf on Evidence, in a note to sec. 290, it is said : "The case of Kingsford v. Hood, 105 Mass. 495, decides that when it is proved that two people, father and son, bear the same name, which is the name of a grantee in a deed, declarations of the grantor made at the time the deed is drawn up, as to which of the two he intended should be the grantee, are inadmissible. This case proceeded upon the principle that the father having contracted for the land and paid the price, the intent of the grantor was immaterial, as the deed would pass the land to the father, and if it inured to the benefit of the son it must be by the intent of the father, not the grantor. It is submitted however that the intent of the grantor was the precise point in issue. If he intended the deed to be to the father, the land passed to the father ; if he intended the deed to be to the son, then the land passed to the son, subject, it may be, if the father paid the price, to a trust in favor of the father." But the court held that evidence was competent that the deed was delivered to one of the two, and that he entered into occupation, and so of any declarations or acts forming part of the res gestce. The same court held in Simpson v. Dix, 131 Mass. 179, that if ' Tevii V. Collier, — Tex. — ; 19 S. W. Crawford v. Spencer, 8 Cush. 418. Rep. 801. Jackson v. Hart, 12 Johns. 77. ' N. Y. Life Ins. Co. v. Aitkin, 125 N. Y. Jackson v. Foster, 12 Johns. 488. 660. *■ Prichard v. James, — Ky. — ; 20 S. W. ^ Whitmore v. Learned, 70 Me. 276. Rep. 216. 314 PAROL EVIDENCE. land is conveyed to J. S., and there are two of that name, father and son, there is no presumption that the father was intended, nor that the omission of "junior" draws a presumption that the son intended the father to be the grantee; and that evidence is admissible to show who is the grantee. 11. On a lease of the " Adams House," parol evidence was held competent to show that it was the intention of the parties to includeonly that part of the building fitted up as a hotel under that name, and not the separate shops below.* A lease described the demised premises as " the premises on the corner of A and B streets, recently occupied by J. S. The shops are not included." Held, that the lease did not necessarily pass the entire building on the corner, except the shops ; and that therefore parol evidence was admissible to show whether a particular part had been occu- pied by J. S.^ 12. A contract of sale of a tract of land " called Mount Hope^ containing about 40 acres," may be shown by the acts of the parties to intend 70 acres known by that name.^ In Case v. Dexter, 106 N. Y. 548, where a deed conveyed " lot number three^ lying southerly or southeasterly of Fish Lake, commonly known as Fish Lake lot, supposed to contain sixty-seven acres," and the locus in quo was seven acres north of the lake, and it was apparent that the deed did not cover the seven acres and that " number three " was a mistake, evidence brought to show that the land south of the lake was commonly known as Fish Lake lot was held competent. 13. Where land is conveyed by courses and' distances alone^ without reference to monuments, parol evidence to show that the true boundary is a line of marked trees, and varying from the written calls of courses and distances, is inadmissible.* 14. But in McNeil v. Dixon, i A. K. Marsh. 365 ; S. C. lO' Am. Dec. 740, it was said : " Parol evidence in relation to the boundaries of the land, or to the place of executing the survey, although not comprehended by the courses, but answering other description contained in the patent, was correctly admitted," and in Francis v. Hazlerig, i A. K. Marsh, 93, it was held that parol • Sargent v. Adams, 3 Gray, 72 ; S. C. * Wynne v. Alexander, 7 Ired. L. 237 ; S. 63 Am. Dec. 718. C. 47 Am. Dec. 326. ' Alger V. Kennedy (4g Vt. 109), 24 Am. To this effeitt, Hamilton v. Cawood, 3 Rep. 117. Harr.& McH.437 ; S. C. i Am. Dec. • Old Colony R. Corp. v. Evans, 6 Gray, 378. 25 ; S. C. 66 Am. Dec. 394. DEEDS. 315 evidence may be given to show the real boundaries of land to be variant from those called for in a patent or deed. 15. In Livingston v. Ten Broeck, 16 Johns. 14; S. C. 8 Am. Dec. 287, where a deed granted a privilege of taking from other lands of the grantor " timber for building," evidence was admitted of an ancient and well-known custom under the grant to cut timber for fencing. " 16. In Blaney v. Rice, 20 Pick. 62, the deed described the premises as running back from a street eighty-five feet, more or less, to other land of the grantor, part of the same tract. Evidence was admitted that the grantor, afterward, but before selling any more, put on record a plan of the land, in which the granted part was laid down as eighty-eight feet in depth from the street, and this was held to prevail, on the ground that it was equivalent to fixing a monument intimated by the words " more or less," and was presumed to be " done by agreement and in pursuance of the contract of sale." To the same effect. Miles v. Barrows, 122 Mass. 579. There it was said : " Upon applying the deeds to the land, a latent ambiguity arises, and it is competent to show by parol that the fences were erected by agreement of the parties, and were intended to mark the monuments and boundaries of the lots conveyed." In this case fences were alluded to in the deed as to be erected. 17. Parol evidence is inadmissible to show that by the words " more or less " the parties intended anything else than the sale of the entire tract described.* Or that in " mines and minerals " the grantor intended only copper ore.^ 18. In Frey v. Drahos, 6 Neb. i ; S. C. 29 Am. Rep. 353, property was described in a chattel mortgage as " one frame grain elevator warehouse * * * with all the appurtenances thereto belonging." Fifty feet distant were an engine-house, containing an engine and boiler, connected by a rubber belt with the eleva- tor when in operation. One hundred feet distant were an office building and a stationary scale, entirely disconnected from the elevator, and used also in other business. The buildings were all on leased ground. Held, that the mortgage being unambiguous, parol evidence was inadmissible to show what was intended to be conveyed, and the opinion of witnesses as to what is " appur- tenant " is incompetent. So in Green v. Collins, 86 N. Y. 246 ;. ' Dale V. Smith, i Del. Ch. i ; S. C. 12 « Hartwell v. Camman, 2 Stockt. Ch. Am. Dec. 64. 128 ; S. C. 64 Am. Dec. 448. 316 PAROL EVIDENCE. S. C. 40 Am. Rep. 531, the same was held in respect to a sewer- pipe discharging on adjacent premises of a third person. The <:ourt said : " As the deed merged all prior and contemporaneous agreements which had been niade, the parol evidence was inad- missible for the purpose of controlling its legal effect, or modifying or enlarging its meaning or import. It was not sufficient to convey the ri'ght to the use of the sewer upon its face, and the effect of the testimony was to contradict and control its operation, and to give it more force than legitimately could be derived from the language used, and the apparent intention of the parties. Such evidence was incompetent for any purpose (Mott v. Palmer, i N. Y. 564) and even if received without objection, could not change the legiti- mate effect of the deed. The case presented bears no analogy to one where a description of land conveyed by deed is vague and uncertain, and parol evidence is admissible as to the real boun-