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Parol and ment is the only evidence of the contract^). But dence. a mere unsigned memorandum made, after a verbal contract, by an agent, for the purpose of assisting his recollection, will not exclude parol evidence(A); and it seems the plaintiff is not bound to produce a memorandum of the agreement not signed by the defendant (s). 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 (A;).
Exempted 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(/J 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 (tn). 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.
(A) Dalison v. Stark, 4 Esp. 163; Hawkins v. Warr, 3 B. & C. 698. See Barton 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.
(/) 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 SlamPgoods; an agreement relating to a guaranty of payment(jo) ;—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 (*);—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(tf), unless such collateral matter itself requires a stamp, and is auxiliary to the contract of sale(w).
Agreements for the sale of fixtures (x), or agree- Wiien not ments for the sale of growing crops, &c., which give "emPtetU an interest in land(^j, are not agreements relating
(n) Venning v. Leckie, 13 East, 7. See Ingram v. Lea, 2 Carapb. 521.
(o) Ellis v. Ellis, Gow, 216.
(p) Warrington v. Furbor, 8 East, 242; Walkins v. Vince, 2 Stark. N. P. C. 368.
(q) Skrine v. Elmore, 2 Campb. 407; Brovm v. Frye, cited Hid.
(r) Curry v. Edensor, 3 T. R. 524.
(*) Whitworth v. Crockett, 2 Stark. N. P. C. 431.
(t) Heron v. Granger, 5 Esp. 269; Meeting v. Duke, 2 Man. & Ry. 121; Tooke v. Meering, Dan. & Lloyd, Merc. Ca. 35. See Grey v. Smith, 1 Campb. 387.
(a) Carder 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 Waterivbrks 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. Burtenshaie, 5 B. & C. 45; S. C. 7 D. & R. 800.
Parol evidence will not in general be admitted to Parol evicontradict or vary(e), or to add to(f), 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 (A). 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 (z). 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 (A), or upon a contingency (/). But a latent ambiguity may be ex
(e) Meres v. Ansell, 3 Wils. 275; Maxwell v. Sharp, Say. 189; Faster v. Jolly, 5 Tyrwh. 239; Pickering v. Dowson, 4 Taunt. 779.
(/) Preston v. Merceau, 2 Bl. Rep. 1249; Gardiner v. Gray, 4 Carapb. 144.
(g) Hope v. Atkins, 1 Price, 143; Coker v. Guy, 2 B. & P. 565.
(A) Shelton v. Livius, 2 Cr. & Jer. 411. See above, Book I. Chap. v. and the cases there cited, p. 153, note (6).
(t) 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.
(I) Ronson v. Walker, 1 Stark. N. P. C. 361; Mosely v. Handford, 10 B. & C. 729; Foster v. Jolly, 1 Cr. Mees. & R. 703.
Parol evi- plained by parol; thus, it may be shown by ex
trinsic evidence, that a party, in whose name the contract was made, acted as agent merely, if the contrary does not appear on the face of the written agreement (m). written It seems that a written agreement may be waived
nm^bTdis- or discharged by parol before breach (n), at all charged by events •where the Statute of Frauds does not require it to be in writing. And there seems to be some doubt whether it may not be so discharged, even where it could not have been sued upon without being in writing; for the words of the statute are, not that every agreement shall be in writing, but that no action shall be maintained upon it unless it be in writing;—which consists very well with the discharging of the agreement by parol (o). It
(m) Wilson v. Hart, 7 Taunt. 295.
(n) Gorman v. Salisbury, 1 Vern. 240; Lord Milton v. Edgworth, 5 Bro. P. C. 313; Edward v. Weekes, 1 Mod. 262.
(o) See the judgment of Lord Daman, C. J., 5 B. & Ad. 66. In Taylor v. Hilary, (1 Cr. Mees. & Rose. 741; S. C. 5 Tyrw. 373,) a subsequent executory agreement, substituted for a former undertaking to guarantee the payment of the price of certain goods, was held on demurrer to discharge the prior obligation. The second agreement was not in writing, and it does not appear on the face of the pleadings that the first agreement was in writing; though it should seem that it must have been written, as it would not have been otherwise available. The ground of the decision seems to be, that the second agreement did not require to be in writing, because it was an original undertaking (see per Parke, B., 5 Tyrw. 375), and that performance was not necessary to be averred, because the plea was not by way of accord and satisfaction, (see per Parke, B., 5 Tyrw. 376; 1 Cr. Mees. & Rose. 743.)—Post.