the agent's authority will make his contract bind- Assent of the parties. ing on the principal, as much as if he had given previous consent (a), on the principle of the maxim, “ omnis ratihabitio retrotrahitur, ac mandato priori æquiparatur” (b); and in some cases a ratification may be implied (c). 66 terms of 2. Proof of the Terms of the Contract. Verbal and written Agreement.-It has been already Proof of stated that, by the Statute of Frauds (d), when the contract. goods are of the value of £10 or upwards, the contract must be in writing, signed by the party to be charged or his authorized agent; unless part of the goods sold have been actually accepted, or unless something has been given in earnest to bind the bargain, or in part payment (e). agreement. Where the contract has been reduced to writing, Written the writing itself must be produced, since parol evidence is secondary in its nature to written evidence, and is excluded by it(f); thus, where a bill of sale of goods has been executed, the instru (a) Soames v. Spencer, 1 D. & R. 32; M'Lean v. Dunn, 4 Bingh. 722. (b) See 1 B. & P. 323. (c) See 8 B. & C. 448; 2 Man. & Ry. 564. (d) 29 Car. II. c. 3, s. 17. (e) See above, pp. 49, 50, et seq. Book I. Chap. iii. Part 1. (f) Brewer v. Palmer, 3 Esp. 213; Vincent v. Cole, 1 M. & 168; Bliedstyn v. Parol and written evidence. Exempted from stamp. ment is the only evidence of the contract (g). But a mere unsigned memorandum made, after a verbal contract, by an agent, for the purpose of assisting his recollection, will not exclude parol evidence (h); and it seems the plaintiff is not bound to produce a memorandum of the agreement not signed by the defendant (i). If the original contract was commenced under a written instrument, which is not available for the plaintiff, it appears doubtful whether parol evidence even of additional items is admissible (k). A written agreement relating to the sale of goods, wares, and merchandise, may be given in evidence without a stamp, being expressly exempted by the Schedule of the Stamp Act (1) from the usual agreement-stamp. Thus, an agreement for the sale of an undivided moiety of a specific chattel is an agreement of sale within the Act, and therefore exempted (m). So, it has been decided, that an agreement for the payment in a particular (g) Lano v. Neale, 2 Stark. N. P. C. 105; Kain v. Old, 2 B. & C. 627. (h) Dalison v. Stark, 4 Esp. 163; Hawkins v. Warr, 3 B. & C. 698. See Burton v. Plummer, 2 Ad. & Ell. 341; Stephens v. Pinney, 2 B. Moore, 349. (i) Wilson v. Bowie, 1 C. & P. 8. See 4 Esp. 164; 3 B. & C. 698; 2 B. Moore, 349. (k) See Vincent v. Cole, 3 C. & P. 481; S. C. 1 M. & Malk. 257. But see Read v. Barber, Dan. & Lloyd, Merc. Ca. 286, n. (1) 55 Geo. III. c. 184. (See 3 & 4 Will. IV. c. 55, s. 32.). (m) Marson v. Short, 2 Bingh. N. S. 118. manner(n), or at a future time (o), of the price of Stamp. goods; an agreement relating to a guaranty of payment (p);—an agreement relating to a warranty of soundness of the chattel sold (q); ;-an undertaking by a broker to indemnify the purchaser in the event of loss upon a resale (r);-an agreement to substitute a different contract concerning the sale of goods(s);—come within the exemption of the act. An agreement relating to the sale of goods may be given in evidence without a stamp, although it contain collateral matter (t), unless such collateral matter itself requires a stamp, and is auxiliary to the contract of sale (u). Agreements for the sale of fixtures (x), or agree- When not ments for the sale of growing crops, &c., which give exempted. an interest in land (y), are not agreements relating (n) Venning v. Leckie, 13 East, 7. See Ingram v. Lea, 2 Campb. 521. (0) Ellis v. Ellis, Gow, 216. (p) Warrington v. Furbor, 8 East, 242; Watkins v. Vince, 2 Stark. N. P. C. 368. (g) Skrine v. Elmore, 2 Campb. 407; Brown v. Frye, cited ibid. (r) Curry v. Edensor, 3 T. R. 524. (s) Whitworth v. Crockett, 2 Stark. N. P. C. 431. (t) Heron v. Granger, 5 Esp. 269; Meering v. Duke, 2 Man. & Ry. 121; Tooke v. Meering, Dan. & Lloyd, Merc. Ca. 35. See Grey v. Smith, 1 Campb. 387. (u) Corder v. Drakeford, 3 Taunt. 382. (x) Wick v. Hodgson, 12 B. Moore, 213. But an agreement to supply water by means of pipes was held to be exempted, Middlesex Waterworks v. Suwerkropp, M. & Malk. 408. (y) Waddington v. Bristow, 2 B. & P. 452. Vid. supra, p. 54, Stamp. to the sale of goods, wares, and merchandise, and therefore require a stamp. It has been held, that a contract in fieri is not within the exemption, such as a contract for the making and putting up of certain machines not in esse at the time of the contract(). But a contract, for the sale of oil not yet expressed from the seed, was held to be exempted (a); and also, a contract for "finishing certain marble chimney-pieces in a workmanlike manner" (b). Contracts, of which the primary object is not the sale of goods, are not within the exemption (c). Contracts under seal, though relating to the sale of goods, are inadmissible without a stamp (d), because by other provisions of the Act all specialties are liable to a stamp duty. and the cases there cited, distinguishing contracts on the 4th section of the Statute of Frauds, from contracts on the 17th section; the former require a stamp, the latter are exempted. (z) Buxton v. Bedall, 3 East, 303, cor. Grose, J., and Lawrence, J. (a) Wilks v. Atkinson, 6 Taunt. 11; S. C. 1 Marsh. 412. (b) Hughes v. Breeds, 2 C. & P. 159, cor. Abbott, C. J. [This case is clearly irreconcileable with Buxton v. Bedall: and probably the latter would now be overruled, since the passing of Lord Tenterden's Act (9 Geo. IV. c. 14, s. 7). The case of Towers v. Osborne, (1 Str. 506,) was cited by the Court, as an authority to show that such a contract was not a contract relating to the sale of goods, wares, and merchandises; but that case, it has been seen, is no longer law; See above, Book I. Chap. iii. (p. 52.)] (c) Smith v. Cator, 2 B. & A. 781; Leigh v. Banner, 1 Esp. 403. (d) See per Bayley, J., Clayton v. Burtenshaw, 5 B. & C. 45 ; S. C. 7 D. & R. 800. dence can written. Parol evidence will not in general be admitted to Parol evicontradict or vary (e), or to add to(ƒ), the terms not vary of the written contract; or even to explain it where there is no latent ambiguity (g). Thus, the verbal declarations of the auctioneer, at the time of the sale, are inadmissible to contradict the written particulars (h). So, where there is no stipulation in the written contract as to the time of delivery of the goods, the purchaser will not be permitted to show, that they were to be taken away immediately (i). And where a written agreement specifies a particular time, parol evidence is inadmissible to alter it; thus, it has been held, that a promissory note made payable on demand, or on a particular day, cannot be shown to be payable upon some other day (k), or upon a contingency (1). But a latent ambiguity may be ex (e) Meres v. Ansell, 3 Wils. 275; Maxwell v. Sharp, Say. 189; Foster v. Jolly, 5 Tyrwh. 239; Pickering v. Dowson, 4 Taunt. 779. (f) Preston v. Merceau, 2 Bl. Rep. 1249; Gardiner v. Gray, 4 Campb. 144. (g) Hope v. Atkins, 1 Price, 143; Coker v. Guy, 2 B. & P. 565. (h) Shelton v. Livius, 2 Cr. & Jer. 411. See above, Book I. Chap. v. and the cases there cited, p. 153, note (b). (i) Greaves v. Ashlin, 3 Campb. 426; Halliley v. Nicholson, 1 Price, 404; Cooper v. Smith, 15 East, 103. (k) Free v. Hawkins, 7 Taunt. 278; Woodbridge v. Spooner, 3 B. & A. 233. (1) Rawson v. Walker, 1 Stark. N. P. C. 361; Mosely v. Handford, 10 B. & C. 729; Foster v. Jolly, 1 Cr. Mees. & R. 703. |