And it has been considered, that parol evidence would probably be admissible to supply a blank in an agreement not falling within the statute of frauds (e); as if a written bargain were made for goods under 107., leaving a blank for the quantity to be delivered. And in all cases of executory contracts for the purchase and sale of goods, where the parties are silent as to price, an inference will arise, that the parties intended to sell and buy at a reasonable price (ƒ).

And parol testimony shall not be received, even to add to a written agreement a term or stipulation orally agreed upon between the parties before or at the time the bargain was reduced into writing, to be parcel of the written instrument, but not introduced therein; for this would be in effect to alter such agreement (g). Thus, if a written demise be silent as to groundrent (h), or land-tax (i), parol evidence is not admissible to show that the tenant agreed to pay it. So, if an annuity deed do not contain a clause of redemption, it cannot be orally proved that it was only omitted, lest it should render the transaction usurious, or that it was agreed that it should be redeemed on terms (k).

But at common law, and in cases where the contract is not affected by the statute of frauds, after the agreement has been reduced into writing, it is competent to the parties, at any time before breach of it, by a new contract not in writing, either altogether to waive, dissolve, or annul the former agreement, or in any manner to add to or subtract from, or vary or qualify, the terms of it, and thus to make a new contract; which is to be proved, partly by the written agreement, and partly by the sub

(e) Phillips on Ev. 8th ed. 772; Ingram v. Lea, 2 Camp. 521.

(f) Hoadly v. Maclaine, 4 M. & Scott, 340; Acebal v. Levy, id. 217, 10 Bing. 376, 4 M. & S. 217. A memorandum which is silent as to price will not support a count alleging a contract at the shipping price; nor where the parol evidence discloses a contract at the shipping price, will it, under a count for goods bargained and sold, prove contract at a reasonable price. Id.; Knapp v. Harden, 1 Gale,

47.

(g) Stark. Ev. 550; ante, 104; 4 Bro. C. C. 515; Meres v. Ansell, 3

Wils. 275; Powell v. Edmonds, 12 East, 6; per Best, C. J., Morley v. Boothby, 3 Bing. 112; Lewis v. Jones, 4 B. & C. 506; 6 D. & R. 567, S. C.; per Denman, C. J., Goss v. Lord Nugent, 5 B. & Ad. 64, 65; 2 Nev. & Man. 33.

(h) Preston v. Merceau, 2 Bla. R.

1249.

(i) Rich v. Jackson, 4 Bro. Ch. C. 515; 6 Ves. 334, note, S. C.

(k) Lord Irnham v. Child, 1 Bro. C. C. 92; Portmore v. Morriss 2 id. 219; Haynes v. Hare, 1 H. Bla. 659.

sequent verbal terms engrafted upon what will be thus left of the written agreement (1).

Where the whole matter passes in parol, all that passes may sometimes be taken together, as forming parcel of the contract, though not always; because matter talked of at the commencement of a bargain may be excluded by the language used at its termination. But if the contract be in the end reduced into writing, nothing which is not found in the writing can be considered as a part of the contract. A matter antecedent to and dehors the writing, may, in some cases, be received in evidence, as showing the inducement to the contract (m); such as a representation of some particular quality, or incident, to the thing sold. But the buyer is not at liberty to show such a representation, unless he can show that the seller, by some fraud, prevented him from discovering a fault which he, the seller, knew to exist (n). Parol evidence is, however, admissible to show the circumstances and situation of the parties to a contract at the time it was made, so as to assist the jury in determining on the reasonableness of the time within which such contract has been performed (o).

Printed rules fixed to the walls of a horse bazaar, limiting a vendor's liability on a warranty of a horse to a certain time, are admissible in evidence, and binding on vendee, there being some evidence of his having had notice of such rules (p). So a hand bill circulated in an auction-room, on the sale of realty, is admissible to apply the words of a deed conveying the property sold to the vendee (q).

But there are instances in which additional matter may be substantiated by parol testimony, and shall not be excluded by the existence of a written agreement (r); as if the additional terms constitute, in fact, a new subsequent agreement, incorporating the

(1) Per Lord Denman, Goss v. Lord Nugent, 5 B. & Ad. 64; per Lord Abinger, Adams v. Wordley, 1 Mee. & W. 380; 1 Tyr. & G. 620, S. C.

(m) Reay v. Richardson, 2 C. M. & R. 426, 427.

(n) Per Abbott, C. J., Kain v. Old, 2 B. & C. 634; 4 D. & R. 60, S. C.; Flinn v. Tobin, 1 M. & M.367; Lewis v. Jones, 4 B. & C. 506; 6 D. & R. 567, S. C. Verbal declarations of auctioneers at sales not admissible in

contradiction to written conditions. 1 H. B. 289; 1 Ves. 516; 1 V. & B. 524, 378; 3 Mer. 53; 12 East, 6. See also Skelton v. Lirius, 2 C. & Jer. 411.

(0) Ellis v. Thompson, 3 Mee. & W.

445.

(p) Bywater v. Richardson, 1 A. & E. 508.

(q) Murley v. M'Dermott, 3 Nev. & P. 356, ante, 105.

(r) 2 Stark. Ev. 551, 555.

former written terms, or continuing or discharging the former contract; or amount to a substantive collateral agreement (s), or a substituted agreement, by way of accord and satisfaction (t).

It may frequently happen that a written memorandum was not intended to contain, and does not purport in itself to comprise, all the terms of a contract; where, by statute, writing is required to create a valid contract, it would seem that parol evidence cannot be received that there were additional terms; but where writing is not required, it appears that oral proof of a distinct parol contract, relative to terms not noticed in the written memorandum, and showing that the memorandum was confined to one part only of the transaction, may be received (u). Thus, where there was a written contract "for the hire of a horse for six weeks at two guineas," Lord Ellenborough permitted parol testimony to be given, that at the time of the hiring it was expressly stipulated that as the horse was used to shy, the hirer, if he took him, should be liable to all accidents (x). And collateral terms may be ingrafted by parol upon an agreement in writing, which is entirely silent (y) upon the subject of such terms, if the new matter be supported by some known custom, or general understanding (z).

This is a tacit annexation of terms, which are not inconsistent with, but rather support, the general transaction between the parties; and which terms, it is to be presumed, they necessarily had in their contemplation when the agreement was formed.

As an illustration of this rule, may be noticed the cases of a custom of the country in relation to the tenancy of farms, that the tenant shall have the away-going crop (a); or shall, in the last year, till and cultivate the land, being paid a compensation (b); and the instance of a custom that a heriot shall be paid on the death of a tenant for life (c)-customs which shall impliedly pre

($) 2 Stark. Ev. 551, 555; Granville v. Duchess of Beaufort, 1 P. W. 114; 2 Vern. 648. See White v. Purkin, 12 East, 578; per Lord Abinger, Adams v. Wordley, 1 Mee. & W. 380.

(t) Taylor v. 'Hillary, 1 C. M. & R. 741; 5 Tyrw. 373; 1 Gale, 22, S. C.; Patmore v. Colburn, 1 C. M. & R. 65.

(u) Id.; 2 Stark. Ev. 573; Phillips Ev. 772, 8th ed.

(x) Jeffry v. Walton, 1 Stark. R.

vail; there being nothing on the subject in the lease, or other written instrument, between the parties, to controul the operation (d). And it has recently been decided, that if a lease contain no stipulations as to the mode of quitting, the off-going tenant is entitled to his away-going crop, according to the custom of the country, even though the terms of holding may be inconsistent with such a custom (e).

So, if a written instrument proffered as evidence of a collateral fact has, in the particular instance, no exclusive operation, parol evidence may give it a particular operation (f).

It has been held that parol evidence is admissible to show that a legacy was not intended in satisfaction of a debt (g). Such evidence only rebuts a legal presumption raised by extrinsic evidence (h).

And the law leans against the destruction of an instrument by reason of uncertainty; and presumptively attaches to it those consequences and incidents which, in common sense, are appurtenant to its terms; and which the parties must have understood, and intended should be attached thereto (i).

Thus if, on a written contract for the sale of goods, no time be provided for the delivery, the law adds the term (k), that they be delivered within a reasonable time; and in the case of a written contract, for the manufacture of goods, if no price be at the time agreed upon, the inference is, that they were to be manufactured for a reasonable price (1); and a promise to pay is implied, although no such engagement be expressly mentioned.

Where an existing written contract is once proved, questions may arise as to the admissibility of evidence to show that the parties have subsequently consented to vary it. Such evidence is not open to the objection which is made to contemporaneous parol evidence, namely, that it is offered in opposition to that written evidence to which, by the policy of the law, a greater degree of

(d) Ante, 26.

(e) Holding v. Pigott, 5 M. & P. 427; 7 Bing. 465; Hutton v. Warren, 1 M. & W. 466; 1 Tyr. & G. 646, S. C.; Roberts v. Barker, 1 C. & M. 808; 3 Tyr. 945, S. C., ante, 26. See post, Index, Away-Going Crops.

(f) 2 Stark. Ev. 558.

(g) Cuthbert v. Peacock, 2 Vern. 593. But see 3 P. Wms. 353, Fowler v. Fowler.

(h) 2 Stark. Ev. 568, cites 1 Wils. 313; Dougl. 40; 1 Stra. 568.

(i) "Agreements bind not only as to what is expressed therein, but further, as regards all the consequences which equity, usage, or law attribute, to an obligation by its nature." Code Napoleon, or French Civil Code, bk. 3, tit. 3, sec. 1, art. 1135, and sec. 5, art. 1160. See also, ante, 98.

(k) See Greaves v. Ashlin, 3 Camp. 426. See ante, 16; Ellis v. Thompson, 3 M. & W. 456.

(1) Hoadly v. Maclaine, 4 M. & G.

S40.

weight is attached, than to the uncertain and slippery memory of witnesses. In general, such evidence of a subsequent alteration. of the terms of a written agreement is receivable in evidence. Where the defendant agreed by a written contract, not under seal, to purchase of the plaintiffs three hundred hogs of bacon, to be delivered at the fixed times, and in specified quantities; and after a part of the bacon had been delivered, requested the plaintiffs, as the sale was dull, not to press the delivery of the residue, to which the plaintiffs assented; it was held, that this was to be understood only as a parol dispensation of the performance of the original contract, in respect to the times of the delivery; and therefore was not affected by the statute of frauds: and the defendant was held liable for not accepting the residue within a reasonable time afterwards. Lord Ellenborough said, "If this agreement had been varied by parol, I should have thought that there would have been strong ground for excluding the parol evidence. But here, what has been done is only in performance of the original contract. It is a substituted performance; the original contract remains (m)."

So in Hoadly v. Maclaine (n), it was laid down, that in the case of a contract for the sale of goods, to be manufactured, and alterations or additions are made during the progress of the work, such alterations or additions need not be made the subject of a distinct contract in writing.

It should seem, however, to be the object of the statutes which make writing necessary to the validity of certain contracts, that all oral evidence as to them should be excluded, and that they must be proved by writing only (n).

Where the day for completing the purchase of an interest in land is inserted in a written contract, it cannot be waived by oral agreement, and another day be substituted in its place (o). Such a substitution would "virtually and substantially allow an action to be brought on an agreement, relating to the sale of land,

(m) Cuff v. Penn, 1 M. & Selw. 21. See also Warren v. Stagg, cited 3 T. R. 591; Thrush v. Rooke, 1 Esp. R. 53; Stark. Ev. 774, note; Phillipps Ev. 774, sed vide per Cur. Goss v. Lord Nugent, 5 B. & Ad. 67; 2 Nev. & M. 28; and see Alexander v. Gardner, 1 Scott, 281; 1 Bing. N. C. 680. As to dispensing in toto with a written agreement, by a new parol agreement to rescind, &c., or accord and satisfac

tion, see post, Index, Accord and Satisfaction.

(n) Per cur. Goss v. Lord Nugent, 5 B. & Ad. 58, 67; Rippinghall v. Lloyd, 5 B. & Ad. 742. As to variations in building contracts, see per Tindal, C. J. in Jackson v. Galloway, 6 Scott, 792; 5 Bing. N. C. 75, S. C.

(0) Stowell v. Robinson, 3 Bing. N. C. 928; Scott, 196, S. C.; Harvey v. Grabham, 5 Ad. & E. 61.