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the payment of goods, which a third person was about to purchase to a certain amount (1); or a receipt for the price of a horse containing a warranty of soundness. (2)

An agreement for the making of goods is a mere executory contract for work to be done, not for the sale of goods; consequently it is not within the exemption(3). But a written memorandum, ordering goods to be made, but not proving the contract between the parties, may be admitted in evidence without a stamp, as it is not an agreement. (4)

An agreement for the sale of crops growing on certain lands, to be delivered afterwards, has been determined to be an agreement for an interest in land, and is therefore not exempted as a sale for goods (5). "The subjectmatter of the agreement," said Mr. Justice Heath, in the case of Waddington v. Bristow(5), "must be taken with reference to the time at which the contract was made. Now at that time the crops did not exist in the state of goods." And Mr. Justice Chambre said, " Though I admit that a contract for the sale of so many hops as twenty-two acres might produce, to be delivered at a distant day, might fall within the exemption of the act, notwithstanding the hops were not in the state of goods at the time of the contract made, yet I cannot think the present agreement within the exemption, since it gives an interest to the vendee in the produce of the vendor's land." But where the owner of a close, cropped with potatoes, agreed to sell them at a certain rate, and the purchaser was to take them up immediately, the court of King's Bench held, that this agreement was not for any

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in the land(i); and the distinction, taken between this and the two cases just mentioned, was, that there the contracts were for the growing crops of hops and grass, (and therefore the purchasers of the crops had an immediate interest in the land, while the crops were growing to ma• turity,) but here the land was to be considered as a mere warehouse for the potatoes, till the purchasers could remove them, which was to be done immediately. So, where the agreement was to sell all the potatoes growing on a certain piece of land of the defendant, and the plaintiff to dig them up and carry them away, the Court held, that the contract was confined to the sale of the potatoes, as mere chattels, and that nothing else was in the contemplation of the parties. (2)

5. Memorandum or agreement made between the master and mariners of any ship or vessel, for wages, on any voyage coastwise from port to port in Great Britain.

6. Letters containing any agreement (not before exempted) in respect of any merchandize, or evidence of such an agreement, which shall pass by the post, between merchants and other persons carrying on trade or commerce in Great Britain, and residing and actually being at the time of sending such letters at the distance of 50 miles from each other. (3)

A letter written by one, who managed another person's trade, to a creditor, promising to pay a debt which arose in the regular coarse, has been held to come within the letter and spirit of this exemption. (4)

(1) Parker v. Staniland, 11 East, (3) Leigh v.Banner, 1 Eip.N.P. C

361. 403.

(a) Warwick v. Bruce, 2 Maute It (4) M'Kemie v. Banks, 5 T. R. 176. SeLao5.

CHAP. X.

Of the Admissibility of Parol Evidence to explain, vary, or discharge Written Instruments.

"^"HE order, in which it is proposed to treat of this intricate and extensive subject, is, First to consider in what cases parol evidence is admissible to explain ambiguities in written instruments; Secondly, whether parol evidence is admissible to add to, vary, or discharge written instruments; and, Thirdly, to consider the rule of evidence on this subject, established in courts of equity.

Sect. I.

Of the Admissibility of Parol Evidence to explain Ambiguities.

There are two sorts of ambiguities of words, says Lord Bacon (i); the one is called ambiguitas latetis, the other ambiguitas patens. The first occurs, where the deed or instrument is sufficiently certain and free from ambiguity, but the ambiguity is produced by evidence of something extrinsic, or some collateral matter out of the instrument; the latter kind is such as appears on the face of the instrument itself.

L«ent im- , In the first case, the ambiguity, which is raised by exbiguity. trinsic evidence, may be explained in the same manner.

Thus, if a person grant his manor of S. to one and his heirs, so far there appears to be no ambiguity; but if it should be proved, that the grantor has the manors both of South S. and North S., this ambiguity is matter in fact, and parol evidence may be admitted to shew, which of the two manors the party intended to convey (2). So, it was

(1) Bic. Elem., rulo 13. (1) Bac, Elem., ib.

resolved resolved in Lord Cheyney's case (i), if a person has two sons both baptized by the name of John, and conceiving, that the elder who had been long absent is dead, devises his land by his will in writing to his son generally, and in • truth the elder is living, in this case the younger son may in pleading or in evidence allege the devise to him, and if it is denied he may produce witnesses to prove his father's intent, that he thought the other was dead; or, that at the time of making his will, he named his son John the younger, and the writer left out the addition. No inconvenience, adds Lord Coke, can arise, if an averment be taken in such a case; for he who sees the will, by which land is so devised, cannot be deceived by any secret averment; when he sees the devise to the testator's son John generally, he ought at his peril to inquire which John the testator intended, which may easily be known by him, who wrote the will, and by others who were privy to the intent; and, if no direct proof can be made of his intent, there the devise is void for its uncertainty.

When a devise in a will is to a person, designated by a christian and surname without any other description, and' no such person appears to claim the legacy or to have been known by the testator, parol evidence may be admitted to shew, that both the names have been mistaken by the person, who took the instructions for the will; as, in the case of Beaumont v. Fell (2), where a legacy was bequeathed to Catharine Earnley, and the name of the person who claimed the legacy was Gertrude Yardlqy, the Court established the claim, observing how very material it was, that no such person as Catharine Earnley claimed under the will. Here, there was no ambiguity on the face of the will, but the latent ambiguity was introduced by extrinsic

(1) 5 Rep. 68. b. See aUo Ah ham's set v. Sweet, AmbL 175. Brad win v. case, 8 Rep. 155. Hob.31. Jones v. Harpur, Arebl. 374. Parsons v. ParNewman, 1 Blackst. 60. Harris v. Bp. sons, 1 Ves. jun. 266. 3 Ves. jun. 311. of Lincoln, 1 P. W ms. 136. Smith v. Coney, 6 Ves. jun. 41. Doe

(2! 2 P. Wtns. 140. See also Dow Jesn. Cook ».Danver;, 7Jiast,303.

evidence, evidence, and the same kind of evidence also shewed, that there was a person of the name of Gertrude whom the testator called Gatty, which name the person who drew the will mistook for Katy; in this case, therefore, as parol evidence was admitted to shew the latent ambiguity, parol evidence was also admitted to explain it. So, where the testator bequeathed his stock in a particular fund, and it appeared, that he had not at the time of making his will or afterwards any stock in that fund, having sold out some time before and purchased into another fund, evidence was admitted to shew whence the mistake arose, and the legacy was satisfied out of the new fund, into which the testator had purchased (1). So, where the devise was "of all my farm and lands called Trogues-farm, now in the occupation of A. C," the court of King's Bench were clearly of opinion, that two closes in the occupation of L. M., but forming a part of Trogues-farm, would pass under the devise; and that a written notice from the testator to L- M. had been properly admitted in evidence, to shew that he considered them as parcel of his farm called Trogues-farm (2). Herethe devise was sufficiently comprehensive to include the whole of the lands, and ought not to be narrowed by the defective description of the occupation.

In the instances, which have been just mentioned, it is to be observed, that, unless the evidence had been admitted, the will could not have taken effect. In the first case, no person was to be found corresponding with the description in the devise; in the second, the testator had no property in the funds, out of which he appointed the legacy to be paid; and in the third, if the closes in question were not to be included as part of the devised farm, the word " all" in the devise would not be satisfied. And the question on the admissibility of parol evidence, in such cases, will depend principally upon this, namely, whether the evidence

(1) Selwood T.MiWmay, 3 Ves-jun. (l) Goodthle dem. Radford v. Sou

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thern, 1 Maule & Selw, 299.

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