or corporeal natures may, at common law, be granted without deed. And although an estate of inheritance or freehold cannot be granted upon condition without deed, yet a chattel, real or personal, may be so granted by mere parol.8 [34]

There is also a great difference between the effect of a gift of chattels by mere word of mouth, and a gift of chattels by deed. In the former case, after the gift and before something has been done or said by the donee to show his acceptance of the thing given, the gift is revocable.

But

if the gift be by deed, it vests in the donee upon the execution of the deed, and is irrevocable by the donor until it is actually disclaimed by the donee. After such execution, and before such disclaimer, the estate is in the donee without any actual delivery of the chattel given.1

A deed is also necessary for authorizing an agent to execute a deed for another.2 [35] It is also, as will hereafter appear, necessary to a grant by a corporation.

Lastly, with regard to the remedy upon a contract by deed: wherever a promise is made by deed, the performance may be enforced by an action of covenant; and if a liquidated debt be secured by it, by an action of debt.3 [36]

LECTURE II. [38]

THE NATURE OF SIMPLE CONTRACTS;

OF WRITTEN CONTRACTS;

THE STATUTE OF FRAUDS.

Simple contracts comprise all of a degree inferior to deeds, whether they be verbal or written.*

They are so far alike that they all, whether verbal or written, are subject to those marks of inferiority to contracts by deed which were described in the last lecture. Thus they do not cerate an estoppel. They are capable of being put an end to without the solemnity of a deed. They form no ground of action against the heir or devisee, even though he be expressly named in them; and they require a consideration to support and give them validity, though, as will be hereafter explained, there is one case, even among simple contracts, in which the consideration need not be shown, but is presumed to exist, unless its existence can be disproved. [39] In these respects, all simple contracts are like one another.

But there are two great practical differences between verbal and written contracts. The first concerns the mode

in which they are to be proved. When a contract is reduced into writing, it shall be proved by the writing, and by that only. If instead of being constituted by the parties the expositor of their intentions, a written instrument is constituted such by a positive rule of law, the same result must follow. Thus when by the statute of frauds operation is given to a written instrument exclusively, the object of the statute would be defeated if parol evidence were admitted in lieu of the required writing, or in any way to alter it.

The rule itself is, that no parol, that is, verbal, evidence of what took place at the time of making a written contract is admissible for the purpose of contradicting or altering it. [41] And as verbal evidence of what took place at the time of making a written contract cannot be given to show that the meaning of it is different from what its words im

4. See Beckham v. Drake, 9 M. & W. 79; Clark on Contracts, 58, 59.

5. See this volume, Evidence.
6. Id.

port, so neither can evidence that the parties have acted upon the supposition of its being different have that effect. [43]

But though you cannot be allowed to show that the meaning of a written contract was varied, at the time of making it, by words merely spoken, there are some cases in which you may show that it was subsequently so varied. These are cases in which the contract, although written, is of a description which is not required by law to be reduced into writing at all." [44]

But though this may be done where the contract is one which the law does not require to be in writing, yet where a writing is necessary, it cannot be allowed. [45]

Another distinction on this subject is, that in a written contract, or, indeed, in any other written instrument, if there be a patent ambiguity, it never is allowed to be explained by verbal evidence, although a latent ambiguity is so." [45]

A patent ambiguity is one which appears on the face of the instrument itself, and renders it ambiguous and unintelligible: as if in a will there were a blank left for the devisee's name. [46]

A latent ambiguity is where the instrument itself is on the face of it intelligible enough, but a difficulty arises in ascertaining the identity of the subject-matter to which it applies, as if a devise were to John Smith without further description.

Another exception occurs where parties have contracted with reference to some known and established usage.1 [51] In such cases the usage is sometimes allowed to be engrafted on the contract, in addition to the express written

7. Goss v. Lord Nugent, 5 B. & Ad. 58; Dearborn v. Cross, 7 Cow. 50; Cummings v. Arnold, 3 Metc. 485. See, also, Gincher v. Martin, 9 Watts, 109; Negley v. Jeffers, 28 Ohio St. 100; Longfellow v. Moore, 102 Ill.

289.

8. Goss v. Lord Nugent, supra.

9. See Bacon's Maxims, reg. 23;

Dodd v. Burchell, 31 L. J. (Ex.) 364; Clayton v. Lord Nugent, 13 M. & W. 200; Petit v. Shepard, 32 N. Y. (Anno. Reprint) 97 and note; Bell v. Woodward, 46 N. H. 315.

1. Wigglesworth V. Dallison. Dougl., 201; 1 Smith's L. C. (7th Am. Ed.) *670 and notes.

terms. When they have so contracted, the reference in their minds to the usage is similar to that reference which exists in all men's minds (when making a contract) to the general law. [52] In the latter case they intend that where their contract is silent, their rights shall be those which the general law annexes to the stipulations which they have expressed; and in the former they intend that the rules which the usage of the place or trade annexes, shall regulate their rights in those particulars in which their agreement is silent. In both cases they can exclude the general law or the usage by their stipulation, and in both are liable to the general law or to the usage where their contract does not exclude their operation, by showing expressly or impliedly that they did not intend to be bound by it.

Where terms are used which are known and understood by a particular class of persons in a certain special and peculiar sense, evidence to that effect is admissible for the purpose of applying the instrument to its proper subjectmatter; and the case seems to fall within the same consideration as if the parties, in framing their contracts, had made use of a foreign language, which the courts are not bound to understand.2 [60]

But although usage may be admissible to explain what is doubtful, it is never admitted to contradict what is plain.3 [64]

If plain and ordinary terms and expressions, to which an unequivocal meaning belongs, which is intelligible to all, are used, that plain sense and meaning ought not to be altered by mercantile understanding and usage. [66]

In the application of all these rules, evidence of words being used in a certain sense, or that certain incidents are annexed by custom in certain places and amongst certain classes of persons, does not raise a conclusion of law that the contracting parties used the terms in those senses, or that the incident must necessarily be annexed, but is only evidence from which a jury may draw the conclusion that such was the meaning of the parties, or such the custom or

2. Robertson v. Jackson, 2 C. B. 412.

3. Blacket v. Insurance Co., 2 C. & J. 244.

4

usage. [67] And although evidence of usage may be received to explain the written contract, yet, when the jury have decided on the meaning of the term, it is not for them but for the court to put a construction upon the entire contract or document.5

If the contract itself be unusual, evidence of the usage and custom of the trade in the course of which the unusual contract arose, ought not to be received to explain it.

An important practical distinction between simple contracts by mere words and simple contracts in writing is, that there are several matters, which, although they are capable of becoming the subjects of Simple Contract, cannot, nevertheless, be contracted for without writing, so as to give either party a right of action on such contract. [70]

By far the most important class of contracts subject to this observation are those falling within the enactments of the statute of frauds. [29 Chas. II., c. 3.]

The first of the twenty-five sections of which it consists is levelled at parol conveyances of land, and contains the celebrated enactment, that they shall create estates at will only. [71] The second section excepts from this enactment the case of leases not exceeding three years from the making thereof, and reserving two-thirds of the annual value as rent. The third section forbids parol assignments, grants, or surrenders; the fifth is levelled at unattested devises; the sixth at secret revocations of devises; the seventh at parol declarations of trust; the nineteenth and twentieth against nuncupative wills of personalty; and the twentyfirst against verbal alterations in written wills. [72]

But the two sections which mainly affect contracts are the fourth and seventeenth.

The fourth section enacts:-"That no action shall be brought to charge any executor or administrator upon any special promise to answer damages out of his own estate; or whereby to charge the defendant upon any special

4. Clayton v. Gregson, 5 A. & E.

302.

5. Hutchinson v. Bowker, 5 M. & W. 535.

6. Lewis v. Marshall, 7 M. & G. 729.