« 이전계속 »
was entitled to an allowance for foldage from the in-coming tenant. The lease however specified certain payments to be made by the in-coming to the out-going tenant at the time of quitting the premises, among which there was not included any payment for foldage. It was held that the terms of the lease excluded the custom, and that the out-going tenant was not entitled to any allowance in respect of the foldage.
So where a tenant held under the terms of an expired lease, by which it was stipulated that the tenants on quitting the farm should not sell or take away any of the manure in the fold, but should leave it to be expended on the land by the landlord or his succeeding tenant, and the lease contained no stipulation as to the tenant being entitled to payment for such manure ; but by the custom of the country the tenant would have been bound not to sell or take away the manure in the fold, but to leave it to be expended on the land by the landlord or his succeeding tenant, and would have been entitled to be paid for the same, it was held that as an express stipulation had been made on the subject the custom was excluded and that the tenant was not entitled to be paid for the manure (x).
Parol evidence is admissible to introduce the custom as part of the contract between the parties in all cases, except where, either in express terms or by necessary implication, the covenants of the lease exclude the custom; and therefore a custom of the country, by which the tenant of a farm, cultivating it according to the course of good husbandry, is entitled, on quitting, to receive from the landlord, or incoming tenant, a reasonable allowance for seeds and labour bestowed on the arable land in the last year of the tenancy, and is bound to leave the manure for the landlord, if he will purchase it, is not excluded by a stipulation in the lease under which he holds, that he will consume threefourths of the hay and straw on the farm, and spread the manure arising therefrom, and leave such of it as shall not be so spread on the land for the use of the landlord, on receiving a reasonable price for it (y).
The same rule applies in the case of bills of exchange and promissory notes: they cannot be contradicted or varied by a parol contemporaneous engagement inconsistent with their te
(2) Roberts v. Barker, i C. & M. 808; 3 Tyr. 945, S. C.
(y) Hutton v. Warren, 1 Mee. & W. 466.
nor (2). Thus, if the instrument purport to be an absolute engagement to pay at a specified period, or upon demand, oral testimony of a promise that the payment should be prolonged, or depend upon a contingency, or be made out of a particular fund, cannot be received (a). And it would seem that such evidence eannot be admitted to show that one of the makers of a note, absolute on the face of it, was only a surety (6). But it may be shown by parol that there was no consideration for a bill, and this though the bill express to have been made for value received (c). And if a bond be conditioned for the payment of money absolutely, the defendant cannot plead an agreement that it should operate merely as an indemnity (d).
When a demise is by parol, or, it seems, in writing, but not under seal (e), and in general terms to hold from feast to feast, as from Michaelmas to Michaelmas, it will, primâ facie, be a holding from such feast according to the new style ; unless by the custom of the country where the lands lie, (which custom may be proved by parol testimony) such tenancies commence according to the old style (f). And in cases of parol taking at Martinmas, &c., generally, parol evidence is receivable, without reference to custom, to show whether the day of taking was intended to be calculated according to the new or old style (9).
If however the demise be by deed to hold from any particular feast, as “from the feast of St. Michael's, &c.,” the holding must be taken to be according to the new style, notwithstanding the
(2) See Chitty on Bills, 7th ed. 47; and that the latter had taken a com8th ed. 162; 1 Chit. jun. on Bills, 5. position from the principal debtor.
(a) Foster v. Jolly, 1 C. M. & R. (c) Foster v. Jolly, ubi supra. 703; 5 Tyrw. 239, S. C.; Adams v. (d) Mease v. Mease, Cowp. 47; see Wordley, 1 M. & W. 380; 1 Tyrw. & 2 New R. 597 ; Edge v. Frost, 4 D. G. 620, S. C.; Hoare v. Graham, 3
& R. 243; post. Camp. 57; Free v. Hawkins, 8 Taunt. (e) Doe v. Hopkinson, 3 D. & R. 92; 1 Moore Rep. C. P. 535, S. C. 507.
(6) Clarke v. Wilson, 3 Mee. & W. (f) Furley d. Mayor of Canterbury 208; Woodbridge v. Spooner, 3 B. & v. Wood, 1 Esp. 198, cited in Run. Ald. 223; 1 Chitty, R. 661, S. C.; Eject. 112; Adams, Ej. 2nd ed. 129; Rmeson v. Walker, 1 Stark. R. 361; 3rd ed. 145; 3 D. & R. 508, 509; Moseley v. Hanford, 10 B. & C. 729; and 11 East, 313. Price 8. Edmunds, 10 B. & C. 578; (8) Id. ; Smith v. Walton, 8 Bing. see Perfect v. Musgrave, 6 Price, 111. 238, per Tindal, C. J. Where a party But in Hall v. Wilcor, 1 M. & Rob. relying on a taking from the old style 58, Lord Tenterden is reported to have has to aver it in pleading, he must held, that one of the makers of a joint distinctly state the fact; and it is not note may show that he was a mere enough to state “at Martinmas, to surety for the other maker, and so wit, Nov. 23;" for this will import known to the plaintiff, (the payee,) new Martinmas, id.
custom; and this rule prevails although the tenancy be created by a holding over after the expiration of the lease, and the original entry was according to the old style ().
Parol evidence, offered for the purpose of connecting two written instruments, not having a direct or necessary reference to each other, in order to establish a sufficient contract within the statute of frauds, has been refused; as in the case of the Boydell Shakspeare (i). So an agreement referring to such parts of another instrument as had been read by one party to another, is not sufficient within the statute, because it is imperfect without parol evidence (k). But, if such reference exist, several writings upon the same subject, and intended to form one agreement, shall be construed and treated as such (1).
With respect to the admissibility of parol evidence to explain a written agreement, Mr. Starkie, in his excellent work on the Law of Evidence (m), makes some valuable observations.
An ambiguity apparent on reading an instrument is termed ambiguitas patens; that which arises merely upon its application, ambiguitas latens. The general rule of law is, that the latter species of ambiguity may be removed by means of parol evidence. On the other hand, it is a settled rule that such evidence is inadmissible to explain an ambiguity apparent on the face of the instrument (n).
If an instrument which is in itself wholly devoid of meaning, according to the usual and ordinary rules of legal construction, or which is indefinite and ambiguous, and equally capable of several different constructions and applications, might have one particular definite meaning annexed to it by means of extrinsic oral evidence, it is plain that the oral evidence, and not the writing, would produce the definite effect.
On the contrary, where the terms of the written instrument are clear, and oral evidence is used to point the application to this or that subject-matter, the oral evidence does not usurp the authority of the written instrument: it is the instrument which
(1) Doe d. Spicer v. Lea, 11 East, 312; Smith v. Walton, 8 Bing. 235, 238; see Doe v. Hopkinson, 3 D. & R. 508, 509; and 11 East, 313, per Cur.
(i) Ante, 70; Boydell v. Drummond, 11 East, 142; Jackson v. Love, 1 Bing. 9; 7 Moore, 219, S. C.; Stead v. Liddard, 1 Bing. 196; Moore, 2, S. C. ; see Stark. Ev. 603, 612.
(k) Brodie v. St. Paul, i Ves. jun. 326; see ante, 70, 71.
(1) Id.; Sandilands v. Marsh, 2 B. & Ald. 680, per Bayley, J.; Hare v. Rickards, 5 M. & P. 35; post, Index, Guarantee.
(m) 2 Stark. Ev. 2nd ed. 546 ; Phillipps, Ev. 8th ed. 710, 717.
(n) See an instance, Saunderson v. Piper, 5 Bing. N. C. 425.
operates; the oral evidence does no more than assist its operation, by pointing out and connecting it with the proper subjectmatter; it acts in aid and assistance of the written instrument, and performs that duty which, on every application of a written instrument, must be accomplished by means of extrinsic evidence, that is, it points out the precise object to which the instrument is applicable. And therefore, where the plaintiff and defendant had become purchasers of two lots of land at a sale of the same owner, and the lot which each had purchased was described in the deeds by a reference to the occupation of the then tenant, and there were words to pass all that “was known or reputed to be parcel" of such occupation, and the question between the parties was, as to parcel or no parcel, a handbill describing the lots in question, which was circulated in the auction room at the time of the sale, was admitted in evidence, in order to apply the language in the deed of conveyance (not to control or to construe it), and to show what was at the time of the sale known or reputed to be parcel of one of such tenant's occupation (n).
According to these principles, parol evidence is never admissible to explain an ambiguity which is not raised by extrinsic facts (o). Thus upon a devise " to one of the sons of J. S.," who has several, evidence is not admissible to show that one in particular was meant (p); and the devise is void for uncertainty. And it has been said that at common law, and independently of the statute of frauds, parol evidence would not be admissible to show the consideration upon which a written contract, not under seal, was made, no consideration being stated therein (9).
The rule, that parol testimony may be adduced for the purpose of raising (r) and explaining a latent ambiguity, may be illustrated by referring to the familiar instances of a devise or grant
(n) Murley v. M Dermott, 3 Nev. But that if one specific consideration & P. 356.
only be mentioned therein, not stating (0) Doe v. Westlake, 4 B. & Ald. 57. “ and for other considerations," no
(p) Cheyney's case, 5 Co. R. 68; proof of another consideration, in adS'rode v. Russel, Vern. 624; Harris v. dition to that expressed, can be given; Bishop of Lincoln, 2 P. W. 136, 137; Id.; Sayer, 209; 2 T. R. 366; Stark. Phillips, Ev. 8th ed. 749.
Ev. 2nd ed.; Phillips, Ev. 8th ed. (9) Per Best, C. J., in Morley v. 761, 762; per Coleridge, J. in Rex'v. Boothby, 3 Bing. 112; Clancy v. Pig- Inhabitants of Billinghay, 1 Nev. & gott, 2 Ad. & E. 473; Edge v. Frost, P. 156. 4 D. & R. 243. It seems, however, (r) Thomas v. Thomas, 6 T. R. 671; that in the case of a deed, where no 1 Bro. P. C. 85, 342, 350; Doe d. consideration is expressed, parol evi- Gord v. Needs, 2 Mee. & W. 129, dence of a good consideration is re- and cases there cited. ceivable, Peacock v. Monk, 1 Ves. 128.
of “the manor of A.” the party having two manors of that name (s); or of a bequest “to my cousin, T. S.," I having two cousins of that name (t). And, as observed by Buller, J., whether parcel or not of the thing demised, is always matter of evidence (u).
Parol evidence may be admitted on behalf of one of the contracting parties to show that the other party, apparently a principal in the agreement, was in fact only an agent, so as to fix the real principal (1'); but if the agent contracts in such a manner as to make himself personally responsible, he cannot afterwards, by parol evidence, relieve himself from that responsibility, whether the principal were or were not known at the time of the contract (y); so parol evidence is admissible to show that a written guarantee addressed to one person, was meant to create a responsibility to a firm in which he was a partner (z). A general receipt on a bill of exchange may also be explained by parol testimony (a).
In the case of a latent ambiguity and uncertainty, the actions of the parties previous to, and contemporaneous with, (but not subsequent to,) the agreement, are admissible to explain it, by directing its application : as, if a bargain be made for wheat, without stating the quality, parol evidence of former dealings for a particular quality would perhaps be received (6). Where the agreement is clear, and there is no latent ambiguity, even prior letters of the parties cannot be received in evidence to restrain or alter the sense of the contract (c).
(s) Bac. Elem. Rule 23; Plowd. 85 b.
(t) Jones v. Newman, 1 Bla. R. 60.
(u) Doe v. Burt, 1 T. R. 701. See Kearslake v. White, 2 Stark. R. 508; Beaumont v. Field, 1 B. & Ald. 247; Paddock v. Fradley, 1 C. & J. 90; ante, 105, note (n).
(r) Marston v. Roe, 2 N. & P. 504; Bateman v. Phillips, 15 East, 272 ; Wilson v. Hart, 7 Taunt. 295; 1 Moore, 45, S. C.
(y) Per Lord Denman, Jones v. Littledale, 1 Nev. & P. 697; Magee V. Atkinson, 2 M. & W. 441.
(z) Garrett v. Handley, 4 B. & C. 664; 7 D. & R. 144, S. C.; 3 B. & C. 469. Where a guarantee is given to one partner for money advanced by the firm, the firm may, and semble must,
(a) Graves v. Key, 3 B. & Ad. 313.
(6) 1 Powell on Cont. 984; 372, 3 ; 2 id. 41; 3 Chitty Com. L. 113, 143. A deed is to be construed from the moment of execution, not from subsequent events. Balfour y. Welland, 16 Ves. 156. Contemporaneu expositio est optime, 2 Inst. 11. Attorney General v. Parker, per Lord Hardwicke, 3 Aik. 577. If an instrument be ambiguous, whether a present demise or future letting was meant, the acts of the parties as to taking possession, &c. may be looked at, to discover their intention. Doe d. Pearsan v. Ries, 8 Bing. 178, 181, Per Tindal, C. J. Chupman v. Bluck, 5 Scott, 515; 4 Bing. N. C. 187, S. C.
(c) Hughes v. Slutham, 6 D. & R. 219; 4 B. & C. 187, S. C.
Alexander v. Barker, 2 C. & J. 133; 2 Tyrw, 110, S. C.