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of the memorandum, it had been mentioned and was understood by the parties, that the rent was to be paid clear of all taxes; this evidence was rejected, and the Court of Common Pleas afterwards, on a motion for a rule to shew cause why the verdict should not be set aside, adjudged the evidence to be inadmissible, and refused the rule, (i)
Upon the same principle, the verbal declarations of an auctioneer at the time of sale are not admissible in evidence for the purpose of varying, or adding to, or explaining the printed conditions of sale (2). Thus, where the conditions described only the number and kind of timber trees to be sold by lot, but said nothing as to the weight of the timber, the defendant, in an action for not completing his purchase according to the conditions, was not allowed to prove, that the auctioneer at the sale had warranted the quantity of timber to amount to a certain weight, and the Court of King's Bench was of opinion, that this evidence had been properly rejected (3). Lord Ellenborough said, that "the purchaser ought to have had it reduced into writing at the time, if the representation then made as to the quantity swayed him to bid for the lot. If the parol evidence were admissible in this case, in what instance might not a party by parol testimony superadd any term to a written agreement? which would be setting aside all written contracts, and rendering them of no effect. There is no doubt, that the warranty as to the quantity of timber would vary the agreement contained in the written conditions of sale."
So, when a contract is made for the sale of goods, and the bargain has been reduced into writing, pursuant to the 17th section of the statute of frauds, parol evidence would not be admitted to shew that the parties agreed to vary the quantity of goods to be delivered. But the rule is dif
(1) Rich v. Jackson, 4 Bro. Ch. C. 330. Higginson v. Clowes, I5 Ves.
5i5 . 6 Ves. jun. 334. n. S. C. jun. 516. Clowes v. Higginson, 1 Ves.
(1) Gunnii v. Erhart, 1 H.B1. 189. & Beam. 524. Jenkwson v. Pepys, cited 6 Ves. jun. (3) Powell v.Edmunds, l1£«st,6.
ferent ferent with respect to the time of delivery, or the particular mode of delivery, which are not essential parts of the contract, but are frequently expressed in the memorandum, together with the quantity and the price of the goods, in order the more easily to carry the contract into execution; proof of a verbal agreement has therefore been allowed to prolong the time limited in a written contract for the delivery of a certain quantity of barley (1), on the ground that it was only a continuance of the original contract, a forbearance on the part of the plaintiff for a longer time. And in a very late case (2), where the question was, whether, after a part-delivery of goods, which by a written contract were to be delivered at fixed times, a verbal agreement to extend the time for the delivery of the remainder was good, the Court of King's Bench held that it was good; for this was not a parol variation of the contract, but what had been clone was only in performance of the original contract; the parties agreed to a substitution of other days instead of those originally specified for its performance, but still the contract remained.
It has before been observed, that where no consideration is expressed in a deed, a consideration may be proved. But in some particular cases within the statute of frauds, the consideration must be stated in the written memorandum, and if it is not stated, the defect cannot be supplied by parol evidence; thus, in the case of Wain v. Warlters (3), which was an action on a promise to pay tlie debt of a third person, the Court of King's Bench held, that the memorandum signed by the defendant ought to have expressed the consideration of the promise as well as the promise itself, and, the consideration being omitted, that the plaintiff was not entitled to recover; for the 4th section of the statute of frauds enacts, among other things,
(0 Warren v. Stagg, ruled by Bui- Stadt v. Lill, 9 East, 348. Ex parte
ler J., cited in 3 T. R. 591. Miner, i4Ves. jun. 190. Ei p*rt«
(1) Cuffv. l'enn, 1 MaulefcSel.II. Gardom, 15 Ves. 287. Bateman v.
(3) $ East, 10. As to this case, see Phillips, 15 East, tyt.
F f 4 that
that no action shall be brought, whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person, unless the agreement, upon which such action is brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged *, &c.; and the Court of King's Bench held, in the construction of this clause, that the word "agreement" must be understood in its proper and correct sense; and that, as the consideration for the promise is part of the agreement, this ought also to be stated in writing. The same reasoning applies to all other cases within the fourth section* as where an action is brought on an agreement in consideration of marriage, or on any contract for an interest in land, or upon any agreement not to be performed within a year. It will not follow from the case of Wain v. Warlters, that the plaintiff cannot recover, unless the agreement is signed by all the parties to be bound; for though an agreement in its legal signification means "a mutual assent to do a thing, which ought to be so certain and complete, that each may have an action upon it (i)," yet the clause of the statute by stating expressly, "that no action shall be brought (whereby to charge, &c.), unless the agreement shall be in writing, and signed by the party to be charged therewith," implies that the other party may recover upon it without having signed
(i) Com. Dig. tit. Agreement.
• St. 19 C. 2. c. 3. ». 4. enacts, " that no action shall be brought, whereby to charge any executor or administrator upon any special piomise to answer damages out of his own estate —or whereby to charge the defendant upon any special promise to answer for the del,t, default, or miscarriages of another person —or to charge any person upon any agi cement made upon consideration of mirriags — or upon any contract or sale of land., tenements, or hereditaments, or any interest in or concerning them — or I'pon any agreement, that is not to be performed within the space of one year from the making thereof—»unless the agreement, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some ether person thereunto hy him lawfully authorized."
it(1). Nor are the words of the statute to be construed so strictly, as to make it necessary to state precisely, in the memorandum of the agreement for paying the debt of another person, what is the exact amount of the debt: but it will be sufficient to engage to pay generally, for all the goods furnished within a certain time, or whatever sum the person may owe, &c., and the amount of the goods furnished, or of the debt contracted, is to be ascertained by evidence at the trial (2). In a late,case of this kind (3), where the promise to pay was made by the defendant in a letter addressed by him to one G., (in which he undertook, in case G. would give the bearer D. W. indulgence for a certain time, to see him paid,) the Court of King's Bench were of opinion, that the evidence of G. had been properly admitted to prove, what was the amount of the debt, and also that he had been applied to by the defendant, as the attorney of the plaintiff, who employed him to sue D. W. for the debt owing to the plaintiff. The 17th section of the statute relating to contracts for the sale of goods, as well as the fourth, makes a written memorandum necessary in certain cases*, but it requires only a note or memorandum in writing of the bargain, not a memorandum of the agreement; and under this section, it has been determined that the written memorandum need not express the consideration for the sale. (4)
5. By the rule of law, independently of the statute of Contracts frauds, parol evidence cannot be received to contradict a the iiaiute
(1) See 6 East, 308. and the cases on (i) i5East,a74. this subject collected in Mr. Sugden's (3) Bateman v. Phillips, i t East, 272. Tr. on the law of Vendor and Pur- (4) Egcrton v. Matthews, 6 bast, chaser, 4th edit. p. 64. 307.
* St. 29 C. 2. c. 3. s. 17. enacts, " that no contract for the sale of any goods wares, and merchandizes, for the price of ten pounds sterling or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, .md actually receive the same, or give something in earnest to bind the bargain, or in part of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized."
written agreement; the written instrument must be considered as containing the true agreement between the parties, and as furnishing better evidence than any which can be supplied by parol (i). The reason, assigned by Lord Coke, against admitting parol evidence to contradict the terms of a deed, is very general, and applies to the case of a written agreement, though no writing may have been absolutely necessary. "It would be inconvenient," he says, "that matters in writing, made on consideration, and which finally import the certain truth of the agreement of the parties, should be controlled by an averment of the parties, to be proved by the uncertain testimony of slippery memory (2)." Thus, where there has been a contract in writing for the sale of goods, specifying the quantity and the price, neither of the contracting parties would be allowed to give evidence of conversations previous to or at the time of making the bargain, for the purpose of proving that the price was to be different, or that a different quantity was to be delivered; for this evidence would directly contradict the written memorandum, which must be considered as expressing the final intention and understanding of the parties at the time of the contract. For the same reason, if the time of carrying away the goods is not expressed in the agreement, (and therefore a reasonable time is allowed,) evidence will not be admitted, that the purchaser verbally agreed to carry them away immediately after the purchase (3). But if it was not necessary in the first instance to have the bargain reduced into writing, evidence of conversations subsequent to the time of making the agreement would probably be admitted, to shew that the parties agreed afterwards to vary the contract, or add some new stipulation. Here the written agreement, so far as it purports to express the true meaning of the parties, that is, down to the time of its being concluded, is not in any manner contradicted or impugned; but from
(1) aAtk.383. aBro. Ch.C. 2x9. (i) 5 Rep. 26. 7 Ves.jun.in8. 4Taunt. 786. (3) Greaves v. Ashlin, jCampb.416.