dence.

Parol evi- plained by parol; thus, it may be shown by extrinsic 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

agreement

parol.

It seems that a written agreement may be waived may be dis- 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.

(0) See the judgment of Lord Denman, C. J., 5 B. & Ad. 66. In Taylor v. Hilary, (1 Cr. Mees. & Rosc. 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. & Rosc. 743.)-Post.

dence.

has been determined, however, in the recent case Parol eviof Goss v. Lord Nugent (p), that the written contract cannot be varied in its terms by a parol contract subsequently made, such, as to substitute an agreement different in effect; as, the waiver by the vendee of a condition precedent to be performed by the vendor. This case seems to throw some doubt upon the case of Cuff v. Penn (g), and similar cases (r), in which it was decided that the time of performance, specified in a written instrument, might be enlarged by a subsequent parol agreement, on the ground that this did not amount to a different contract, but was merely a continuation of the original contract. Parke, J. observed (s), "I never could understand the principle on which these cases proceeded, for the new contract, to deliver within the extended time, must then be proved partly by written and partly by oral evidence."

Variance in Proof.-Where there has been a Variance. special contract of sale, the terms must be accurately set forth in the declaration, and must be proved in general as they are laid (t). And where (p) 5 B. & Ad. 58.

(q) 1 M. & S. 21.

(r) Warren v. Stagg, coram Buller, J., cited Littler v. Holland, 3 T. R. 591; Thresh v. Rake, 1 Esp. 53.

(s) 5 B. & Ad. 64.

(t) Bull. N. P. 145; Elbourn v. Upjohn, 1 C. & P. 572. By payment of money into Court, the special agreement is admitted,

Variance.

When ma

terial.

a material averment is contrary to the fact, it will not be cured by being laid under a videlicet (u); though where a statement is made unnecessarily, a videlicet may sometimes have the effect of rendering unnecessary to be proved what the plaintiff would otherwise be compelled to prove (x).

The averment of an absolute promise is not supported by proof of an alternative or conditional promise (y), or the converse (*); nor the averment of a general undertaking by proof of a limited or qualified undertaking (a). Where the contract declared upon was, that the vendor should sell certain tallow to the plaintiff at four shillings per stone, and the contract proved was, that he should sell it at four shillings per stone, and so much more as the plaintiff paid to any other person, it was held to be a fatal variance (b). And where the plaintiff declared on a contract for the delivery of 40

and proof thereof is dispensed with; Guillod v. Nock, 1 Esp. 347; Bennet v. Francis, 2 B. & P. 550; S. C. 4 Esp. 28; Walker v. Rawson, 1 M. & Rob. 250; see 1 Cr. Mees. & R. 210.

(u) White v. Wilson, 2 B. & P. 116; Preston v. Butcher, 1 Stark. N. P. C. 3; Grimwood v. Barritt, 6 T. R. 460.

(x) 2 Wm's. Saund. Rep. 291 c, note to Dakin's case; Crispin v. Williamson, 8 Taunt. 112.

(y) Shipham v. Saunders, 2 East, 4 n. ; see Roberts v. Peake, 1 Burr. 323; Layton v. Pearce, 1 Dougl. 15; Tate v. Wellings, 3 T. R. 531; Blyth v. Bampton, 3 Bingh. 472.

(z) Anon. 1 Chit. Rep. 60, a.

(a) Jones v. Cowley, 4 B. & C. 445; S. C. 6 D. & R. 533; Latham v. Rutley, 2 B. & C. 20.

(b) Churchill v. Wilkins, 1 T. R. 447.

bags of wheat immediately and the remainder on Variance. the next market day, proof of a contract for the delivery of 40 or 50 bags, and the remainder on the next market day, was held to be a variance (c). The allegation of a contract to perform on request, is not supported by proof of a contract to perform on a particular day (d); nor is a contract, for removing goods within a reasonable time, supported by proof of a contract to remove in a month (e); nor can a contract to take on board 500 quarters of wheat be stated as a contract to take a full cargo (f). An agreement to deliver a "at the then shipping price" at a particular place, is not supported by proof of an agreement to deliver at a reasonable price (g). Where the plaintiff declares on a separate or sub-divided contract, this will not be supported by proof of an entire bargain (h). An agreement to deliver goods to defendant, will not be supported by proof of an agreement to deliver them to some other person (i). A contract, for the sale of goods by plaintiff and his partner, cannot be declared upon

cargo

(c) Penny v. Porter, 2 East, 2.

(d) Bordenave v. Bartlett, 5 East, 111, n.

(e) Hore v. Milner, Peake, 42, n., cor. Ld. Kenyon, C. J.

(f) Harrison v. Wilson, 2 Esp. 708.

(g) Acebal v. Levy, 4 M. & Scott, 217.

(h) Symonds v. Carr, 1 Campb. 361; see Everett v. Tindall, 5

Esp. 169; Parish v. Burwood, 5 Esp. 33.

(i) Leery v. Goodson, 4 T. R. 687; Lopez v. De Tastet, 1 B. & B. 538.

Q

Variance.

as a contract by plaintiff alone: if the partner be alive he ought to be joined; if he be dead, the fact of the plaintiff being the surviving partner should appear on the record (k).

So, where the subject-matter of the contract of sale is not stated according to the fact, it is a fatal variance; as, where the goods contracted for are alleged to have been good merchantable wheat, instead of good second sort of wheat (); or, where it is alleged, that the goods were contracted to be delivered according to a peculiar measure, and the proof is, that they were to be delivered according to the standard measure (m). So it is a fatal variance if the plaintiff mis-state the consideration. 'It is a well known rule in pleading that, in assumpsit, the plaintiff must set forth the whole of the consideration truly, which induces the defendant to make the promise for the breach of which the action is brought" (n). If the legal effect of

66

(k) Jell v. Douglas, 4 B. & A. 374; Ditchburn v. Spracklin, 5 Esp. 31; Webber v. Tivil, 2 Wms'. Saund. Rep. 121, note. But where defendant is a surviving partner, he need not be described as such; Richards v. Heather, 1 B. & A. 29.

(1) Anon. Ld. Raym. 735, and Bull. N. P. 145; see Cook v. Munstone, 1 N. R. 351; Weaver v. Burrows, Bull. N. P. 139; Boyd v. Siffkin, 2 Campb. 329; Tucker v. Cracklin, 2 Stark. N. P. C. 385. As to variance between "the bought and sold notes" in sales made through a broker, see above, p. 76.

(m) Hockin v. Cooke, 4 T. R. 314.

(n) Per Tindal, C. J., Cross v. Bartlett, 3 M. & Payne, 541. Blyth v. Bampton, 3 Bingh. 472; 1 Chitt. Pl. 262.