Page images

the proposed evidence it would appear, that they afterwards varied or added to the contract; which is not inconsistent with any thing contained in the original agreement. Lord Hardwicke is reported to have said in a case before him (1), that "to add any thing to an agreement in writing by admitting parol evidence, which would affect land, is not only contrary to the statute of frauds, but to the rule of common law, before that statute was in being." It is not, however, expressly stated in the report of the case before Lord Hardwicke, whether the circumstance, to which the parol evidence related, was previous or subsequent to the signing of the agreement; but it seems rather probable, from the nature of the case, that it was previous.

And though an ambiguity apparent on the face of a written instrument cannot be explained by extrinsic evidence, yet, where a question arises as to the general intention of the parties, concerning which the instrument is not decisive, it has been held, that proof of independent facts collateral to the instrument may be properly admitted. Thus, in the case of King v. Laindon (2), where, on a question between two parishes respecting the settlement of a pauper, it appeared, that the pauper agreed to serve a person three years to learn the business of a carpenter, and evidence was admitted at the sessions, that, at the time of making this agreement, the pauper agreed also to give a sum of money as a premium to be taught the trade; that he paid the money, and that he was not to be employed, nor was he employed, in any other work than that of a carpenter; the court of King's Bench held, that the evidence was properly admitted, as it was not offered to contradict the written agreement, but to ascertain an independent fact collateral to the written instrument, in order to explain the intention of the parties, the

(1) Parteriche v. Powlet, a Atk. (3)8T,R.370. And see i,iVes. 384. See Clinan v. Cooke, f Scboil. 170. a. Let 35.

instrument instrument being in some measure equivocal. It does not distinctly appear from the report, whether the fact alluded to was the verbal agreement, (by which the pauper agreed to pay a premium, and stipulated that he was to do only carpenter's work,) or only the payment of a certain sum of money by the pauper to the master at the time, when the agreement was made. But from the opinions expressed by the Court, in which the evidence of the verbal agreement was not adverted to, it may be inferred, that the latter fact alone was adjudged to be admissible. Lord Konyon said, "The evidence was offered to ascertain an independent fact, and I think it was properly received in evidence. That being so, the case appears to be shortly this: in consideration of three guineas paid by the pauper, the master undertook to teach him the business of a carpenter, and the pauper ims to serve three years." Mr. Justice Lawrence expressed himself nearly in the same words; and Mr. Justice Le Blanc concurred in opinion with the Court, that the parol evidence was admissible, as evidence of a fact collateral to the written instrument, (i) ment, that some note or written memorandum is also necessary to give effect and validity to such subsequent agreement.

Parol agree- A deed cannot be discharged or revoked by parol; for charged by every contract or agreement, says Lord Coke, ought to be P"01. dissolved by matter of as high a nature as the first deed;

nihil tam conveniens est naturali sequitati, quam unumquodque dissolvi eo ligamine, quo ligatum est (2). But it appears to be generally understood, that executory agreements in writing, not under seal, may before breach be discharged and abandoned by a subsequent unwritten agreement, as well in cases where the original contract is required by the statute of frauds to be in writing, as where writing is unnecessary. The reason, above cited from Lord Coke's reports, applies only to agreements by specialty. Agreements, not by specialty, whether written or unwritten, are classed on the same level, and denominated

(1) See alto 14 East, 544. case, 6 Co. Rep. 44. a. Braddkk r.

(1) S Rep. 16. a, 3 Lev. 154. Blake's Thompson, 8 East, 344.


agreements by parol; there is no such third class recognized by the law of England as contracts in writing not under seal; if they arc merely written and not specialties, they are called parol (or, more properly, simple) contracts (i). It follows, therefore, that to admit evidence of an unwritten agreement, for the purpose of shewing an abandonment or discharge of a previous written agreement, would not be to dissolve the agreement by matter of an inferior nature. Nor does the statute of frauds contain any provision respecting the dissolution of agreements; it prescribes the manner of revoking wills, and in many cases makes a written memorandum necessary in order to establish and enforce agreements, but as to the discharge or abandonment of executory agreements the statute is entirely silent, leaving the case as it stood at common law. The 17th section enacts, in certain cases, that "a contract for the sale of goods shall not be allowed to be good, unless some note or memorandum, in writing, of the bargain shall be made and signed," &c.; but an agreement to waive that contract, before breach, is not a contract for the sale of goods, and may therefore be binding, though not reduced into writing. So, the fourth section enacts, that "no action shall be brought upon any contract or sale of lands, &c, or any interest in or concerning them, unless the agreement, upon which the action shall be brought, or some memorandum or note thereof shall be in writing," &c.; this is very different from enacting, that all contracts or agreements concerning land shall be in writing, terms so general and comprehensive that, if they had been introduced into the act, they might be considered as including an agreement for the waiver of a purchase contract, as well as the original agreement itself; the section only provides, that "no action shall be brought upon any contract or sale of lands," &c., but it does not proceed to enact, in case an action is brought, and the defence set up is a dissolution and abandonment of the agrec

[ocr errors][merged small]

On a bill filed in a court of equity tor the specific performance of a written agreement, it appears to be the better opinion, that the defendant may insist, that the agreement has been since discharged merely by parol between the parties (i). In the case of Buckhouse and Crossby (2), indeed, where a bill was filed for the specific performance of a contract for the sale of an estate, and the defendant insisted that the contract had been discharged by parol, in support of which the case of Goman v. Salisbury was cited as an authority, Lord Hardwicke is reported to have declared, that, "though he would not say, that a contract in writing could not be waived by parol, yet he should expect in such a case a very clear proof, and the proof in the case before him he thought very insufficient to discharge 3 contract in writing;" Lord Hardwicke then observed, that the statute of frauds requires, "that all contracts and agreements concerning land should be in writing, and that an agreement to waive a purchase-contract is as much an agreement concerning land as the original contract; however, there was not occasion then to determine the point *."


(1) Goman v. Salisbury, i Vern. 140., in 1 Schoal & Lef. 39. 2 Ves. 299.S. P. cited ind approved by Sir J. Strange in 1 Ves. jun. 404. S. P. 17 Ves. jua. Legal v. Miller, 2 Ves. 299., and in 356. S. V. Phciirne v. Ogbourne, 2 Ves. 376., (2) Eq. Cas. Ab. 32. and cited by Lord Chancellor Redesdale

* In tbis case of Buckhouse and Crossby, the waiver was not between the purchaser and vendor, but between a former and a subsequent purchaser. The material facts of the case will be found to be, that A. seised of lands in fee simple mortgaged them to the defendant, and afterward* authorized his attorney to sell the estate, who sold it by parol agreement to the plaintiff; A. being informed of this, wrote to the plaintiff, acquainting him, that he accepted the purchasemoney; afterwards A. by letter offered the estate for the same money to a third person, who agreed with A. for the purchase on behalf of the defendant, and accordingly A. by indenture conveyed the premises to the defendant, in consideration of 300 guineas then paid. Before this conveyance, C., who treated

for And in the case of Bell v. Howard (i), Lord Hardwicke, after noticing an objection on the part of the defendant against decreeing an execution of written articles for the sale of an advowson, (namely, that the plaintiff had waived the articles,) is reported to have said, that "it was certain an interest in land could not be parted with or waived by naked parol without writing;" but added, "that articles may by parol be so far waived, that if the party come into a court of equity, to have a specific execution of them, such parol-waiver will rebut the equity which the party before had, and prevent the court from executing them specifically." But, in the last case on this subject (2), where the plaintiff prayed a specific performance of an agreement for a lease, under which the plaintiff had taken possession, and afterwards, as the defendant stated in his answer, the parties mutually abandoned the terms of the written agreement, and made another agreement by parol, the Master of the Rolls, observing upon the argument for the defendant, "that the agreement was waived, and that a written agreement may be so far waived by parol, that the Court will refuse the interposition of its equitable jurisdiction to enforce it," said, that as he conceived there was not in the case before him any waiver within the meaning of the dicta or the decisions upon the subject, it was not necessary for him to give any precise opinion upon the point; " but," he added, "as at present advised, I incline to think upon the doctrine of this court, such would be the effect of a parol waiver clearly and satisfactorily proved. The waiver spoken of in the cases is an entire abandonment and dissolution of the contract, restoring the parties to their former

(r) 9Mod 30Z. (1) Price v. Dyer, 17 Ves. 356.363.

See also 9 Ves. 250.

for the purchase on behalf of the defendants, had notice of the plaintiff's title, but being examined as witness for the defendant, swore that, before the conveyance was executed to him, the plaintiff agreed, that all prior contracts between him and A. should be void, and that it should be referred to A., whether the plaintiff or the defendant should be the purchaser, and that A., being written to, gave the preference to the defendant.


« PreviousContinue »