Observa tions on rules of evidence as connec Before we deal with the following heads it will be relevant to observe that the questions arising under them are for the most part either questions of evidence, or mixed questions of evidence and construction. This demands ted with Evidence and con The end proposed is to give effect to the true intention of the parties concerned. Intention has to be inferred from words, or conduct, or both. In making these inferences conduct must generally be interpreted, and words may often be interpreted, by reference to other relevant circumstances of the transaction. And the rules which guide a court of justice in deterstruction. mining of what things it may take notice for the purpose of such inferences, and in what manner such things may be brought to its notice-in other words, what facts are relevant, and what proof of such facts is required—are rules of evidence (a). A rule of construction is a rule for determining the inference to be drawn from a fact of a particular class when duly brought under the notice of the Court according to the rules of evidence-the fact, namely, that persons have used words or combinations of words such as come within the general proposition affirmed by the rule. The name "rule of construction" is confined by general usage to rules for the interpretation of written documents in matters on which, in the absence of a rule prescribed by authority, there might exist a reasonable doubt. Rules of construction, therefore, are in practice closely connected with, and their importance is much affected by, rules of evidence (b). quence of the construction thereupon (a) See the arrangement of the I. Relevancy of Facts. Part II. (b) Cp. Mr. F. V. Hawkins' remarks on rules of construction in the preface to his Treatise on the Construction of Wills. We are now concerned with a general rule of evidence, and the modifications effected in some of its results partly by special rules of construction and partly by direct exceptions. The principle from which the law sets out is one almost Meaning too obvious to need stating, being that on which we daily of the rule as to parol act in all the transactions of life: namely that men are to evidence. be taken to mean what they say. The next step is of a somewhat more artificial character, but equally founded in reason. It is that men are taken to mean what they have chosen to say deliberately and in a permanent form rather than what they may have said in hasty or less considered discourse. Hence the general rule that evidence of an oral agreement is not admissible to contradict the terms of a written document. It has been thus stated: "The law prohibits generally, if not universally, the introduction of parol evidence to add to a written agreement, whether respecting or not respecting land, or to vary it" (a). "If A. and B. make a contract in writing, evidence is not admissible to show that A. meant something different from what is stated in the contract itself, and that B. at the time assented to it. If that sort of evidence were admitted every written document would be at the mercy of witnesses that might be called to swear anything" (b). In the absence of mistake or fraud, or a verbal agree- Rule of ment having been acted upon (c), the same rule prevails equity. in equity, and this in actions for specific performance as well as in other proceedings, and whether the alleged (a) Martin v. Pycroft, 2 D. M. G. 785, 795. We have not to consider in this place how far those cases must be deemed really exceptional in which it is allowed to be shown that a custom of the country, or of trade, though not expressed, is in fact part of the contract. (b) Per Pollock, C. B. Nichol v. Godts, 10 Ex. 191, 194, 23 L. J. Ex. 314. See also Hotson v. Browne, (c) The doctrine of equity as to variation is made by a contemporaneous (a) or a subsequent (b) verbal agreement. "Variations verbally agreed are not sufficient to prevent the execution of a written agreement, the situation of the parties in all other respects remaining unaltered" (c). upon When a question arises as to the construction of a written instrument as it stands, parol evidence is not admissible (and was always inadmissible in equity as well as at law) to show what was the intention of the parties. It is otherwise, as we shall presently see, where it is sought to rectify the instrument. And therefore the Court has in the same suit refused to look at the same evidence for the one purpose and taken it into account for the other (d). Apparent It is no real exception to this rule that though "evidence exceptions at law and to vary the terms of an agreement in writing is not in equity. admissible," yet "evidence to show that there is not an agreement at all is admissible," as where the operation of a writing as an agreement is conditional on the approval of a third person (e). "A written contract not under seal is not the contract itself, but only evidence the record of the contract. When the parties have recorded their contract, the rule is that they cannot alter or vary it by (a) Omerod v. Hardman, 5 Ves. 722, 730. Lord St. Leonards (V. & P. 163) says this cannot be deemed a general rule: but see Hill v. Wilson, 8 Ch. 888; per Mellish, L. J. at p. 899. (b) Price v. Dyer, 17 Ves. 356; Robinson v. Page, 3 Russ. 114, 121. But a subsequent waiver by parol, if complete and unconditional, may be a good defence; ib.: Goman v. Salisbury, 1 Vern. 240. And cp. a new verbal agreement intended to supersede an existing contract, but by reason of the Statute of Frauds incapable of being enforced, cannot operate as a mere rescission of the former contract; the ground being that there is nothing to show any intention of the parties to rescind the first contract absolutely. (c) Price v. Dyer, 17 Ves. at p. 364; Clowes v. Higginson, 1 Ves. & B. 524, where it was held (1) that evidence was not admissible to explain, contradict, or vary the written agreement, but (2) that the written agreement was too ambiguous to be enforced. (d) Bradford v. Romney, 30 Beav. 431. (e) Pym v. Campbell, 6 E. & B. 370, 374, 25 L. J. Q. B. 277. parol evidence. They put on paper what is to bind them, and so make the written document conclusive evidence between them. But it is always open to the parties to show whether or not the written document is the binding record of the contract" (a). "The rules excluding parol evidence have no place in any inquiry in which the Court has not got before it some ascertained paper beyond question binding and of full effect" (b). So in Jervis v. Berridge (c) it was held that a document purporting to be a written transfer of a contract for the purchase of lands "was . . not a contract valid and operative between the parties but omitting (designedly or otherwise) some particular term which had been verbally agreed upon, but was a mere piece of machinery subsidiary to and for the purposes of the verbal and only real agreement." And since the object of the suit was not to enforce the verbal agreement, nor " any hybrid agreement compounded of the written instrument and some terms omitted therefrom," but only to prevent the defendant from using the written document in a manner inconsistent with the real agreement, there was no difficulty raised by the Statute of Frauds, "which does not make any signed instrument a valid contract by reason of the signature, if it is not such according to the good faith and real intention of the parties." If it appears that a document signed by the parties, and apparently being the record of a contract, was not in fact intended to operate as a contract, then "whether the signature is or is not the result of a mistake is immaterial" (d). We shall see however that the heads now to be dis- Real ex (a) Per Bramwell, B. Wake v. Harrop, 6 H. & N. at p. 775, 30 L. J. Ex. at p. 277. (b) Guardhouse v. Blackburn, L. R. 1 P. & D. 109, 115. And see per Page Wood, V.-C. in Druiff v. Lord Parker, 5 Eq. 131, 137. (c) 8 Ch. 351, 359, 360. (d) Per Bramwell, B. Rogers v. Hadley, 2 H. & C. 227, 249, 32 L. J. Ex. 241. In this case there was "6 a real contract not in writing and a paper prepared in order to comply with some form, which was stated at the time to contain a merely nominal price." ceptions in cussed present two classes of really exceptional cases equity. recognized by equity. Artificial rules of construc First, those in which equity applies to instruments of certain kinds rules of construction which (as regards the tion: origin actual terms of the instruments) are highly artificial, so assigned to artificial, indeed, that they come to much the same thing as presuming a verbal agreement inconsistent with and operating to vary the written agreement. them. Limited of oral The ground on which these rules were established (or at any rate which in modern times has been relied on to account for them) was that the manner in which the parties had expressed their intention did not correspond with their true intention. We must therefore consider the cases governed by the rules in question to have been originally cases of relief against mistake expression. But since the doctrine of equity has been fixed and uniform they have practically ceased to have any such nature. For persons who make contracts are presumed to know the law of the land, including the law administered by courts of equity; and therefore they must be presumed to know that if the nature of the contract and the terms used in framing it fall within the scope of these peculiar rules which have now become fixed rules of construction, the contract will be interpreted accordingly. And in fact they generally do know this, and use the accustomed expressions for the very reason that they have acquired a definite artificial meaning in courts of equity. It seems proper, on account of the origin of these equitable rules, to say something of them in this place, though not to go into details belonging to the fuller treatment of the special departments affected by them. In the other class of exceptional cases, which form the admission last division of the subject, courts of equity have admitted oral evidence, for certain purposes and under certain limitations, to show that by reason of a mistake the terms of a written instrument fail to express the real intention of the parties, and that the real agreement is different from evidence against written contract. |