ed terms. In all cases, however, of this kind the party seeking relief undertakes a task of great difficulty, since a Court of Equity will not interfere, unless it be clearly convinced by the most satisfactory evidence, first, that the mistake complained of really exists, and next, that it is such a mistake as ought to be corrected. A plaintiff may seek the relief in equity by filing a bill, eitherto reform the writing,-in which event it will be necessary to satisfy the Court that there was a muistake on both sides, or to rescind the instrument,—in which case, though conclusive proof of error or surprise on the plaintiff's part alone will suffice, it must appear that the mistake was one of vital importance. In either of these cases, if the defendant by his answer denies the case as set up by the plaintiff, and the latter simply relies on the verbal testimony of witnesses, and has no documentary evidence to adduce,-such, for instance, as a rough draft of the agreement, the written instructions for preparing it, or the like,—the plaintiff's position will be well nigh desperate; though even here, as it seems, the parol evidence may be so conclusive in its character as to justify the Court in granting the relief prayed. A defendant also, against whom a specific performance of a written agreement is sought, may insist by way of answer upon the mistake, and may establish its existence by parol evidence because he may rely on any matter which shows it to be inequitable to enforce the contract."

§ 651. It has already been shown that parol evidence is admissible to prove that a written instrument never had a legal inception; as that it was vitiated and void by fraud, &c., from the very commencement. Analogous to this is the case where it is sought to show, that although an instrument is not vitiated by fraud in its inception, yet that it never has in fact had any legal effect or validity, because it was not the intention of the parties that it should commence to have any effect or vitality until a particular event, which has not arisen. Thus a deed takes effect from the date of its delivery; but where a deed has been delivered as an escrow, as it is called, (or mere scroll) that is to say, to some third party to hold until a given event shall have arisen, parol evidence is admissible to show that the instrument was delivered in that character. So in the case of Bowker v. Burdekin,(s) it was held that,—

"It is not necessary that the delivery of a deed as an escrow should be by express word; if, from the circumstances attending the execution, it can be inferred that it was delivered not to take effect as a deed until a certain condition were performed, it will operate as a delivery as an escrow only."

(s) 11 M. and W., 128.

And in Pym v. Campbell(t) it was held that,

"In an action for non-fulfilment of a written agreement, parol evidence is admissible, under the plea of non assumpsit, to show that defendant signed the document upon the understanding between the parties that it was not to operate as an agreement unless a certain condition was performed."

Opposed to these principles is the case of Samoo Oodyan in A. S. No. 146 of 1854, on the file of the Assistant of Combaconum.(v)

In that case one of the parties had purchased a piece of land from the other, who had executed to him an absolute bill of sale. At the same time the purchaser signed an agreement to allow the vendor to re-purchase the land at any time within five years. The agreement was handed over to a third party, by consent of both, with a letter authorizing him to deliver the agreement to the vendor as soon as the registry had been transferred. This never was done; and the agreement was returned to the purchasersubsequently. The vendor afterwards tendered the purchase money within the five years, and required the re-sale of the land. This was refused: and in the suit which followed, in which the purchaser himself filed the agreement, the Judge held that the agreement for re-sale was binding, and refused parol evidence of the circumstances under which it was given to the third party. The Judge said, "I cannot look upon the plea of the non-transfer of the merass registry as constituting a ground for holding the agreement inope"rative; for no such stipulation or condition appears in the docu"ment; and it would altogether do away with the value of docu"ments put forward in evidence, if their effect was to be judged of with "reference to verbal and independent conditions. If these instruments "are to have any force, they must be taken entire and as complete "in themselves."

Against this decision there was a special appeal to the Sudder, and the decision was reversed on the 15th July 1857. There can be no question but that the evidence was admissible for the purpose of showing that the agreement, though unconditional on its face, had in fact never any legal operation.

§ 652. As it may be shown by parol evidence that a document never had a legal inception; so also it may be shown that it has no

(t) 20 Jur. 641.

(v) This case has since been reversed on review of judgment, Secs. 46, 47, of 1857, M. Sud. Rep. for 1858, p. 138. But this was exparte, and the matter is again to be heard. The reversal, whatever may be the ultimate fate of the case, did not affect the rinciplep in illustration of which it is cited, so I have allowed it to stand.

On a second review (no notice of the first having been served) the original decree of the Sudder was affirmed. 46 of 1857. S. K. 59, p. 88.

longer any operation, inasmuch as it has been subsequently totally waived or discharged.

§ 653. Where the original liability has been created by deed, it is true that the deed can only be defeated by another instrument of as high a quality, for the maxim is unum-quodque ligamen dissolvitur eodem legamine quo ligatur.(w) Every contract or agreement ought to be dissolved by the same means which rendered it binding. So Statutes can only be repealed by the Legislature: so deeds by deeds; and simple contracts, (since there is no degree between such contracts, whether they be written or verbal,) by any writing or verbal agreements.

§ 654. It will be remembered that nothing previous to the execution of a contract, or which passed at the time of the execution of a contract, can be introduced for the purpose of varying that contract; (see ante, § 629) but a little reflection will show us that parties subsequently mutually agreeing either to waive, or discharge, or partially to vary a contract already in existence, while it is found very convenient in practice, does not militate with the reasons, or tend to admit any of the dangers, against which the principal rule is directed. Accordingly in Goss v. Lord Nugent,(a) Lord Denman expressly says:

"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 subsequently verbal terms engrafted upon what will be thus left of the written agreement."

§ 655. And a case in the Supreme Court, Veerapermal Pillay v. Miller, affords us an example in point. There, by a written agreement the defendant had promised to supply a certain quantity of rice at Calingapatam for ships to be sent there by the plaintiff, on or before a certain date. The plaintiff sued for non-fulfilment of the contract. The defence was, that the rice was ready for delivery during the whole of the time stated in the contract, but that the plaintiff had not taken it away. At the trial, parol evidence was admitted to show that at interviews subsequent to the execution of the contract, by letters which had passed, and by the conduct of the parties, the contract had been varied, and longer time given for delivery.

SEC. 653-658.

[PAROL EVIDENCE IN AID OF WRITINGS

LATENT AMBIGUITY.

381

In point of fact, in cases of this description, there is a new or substituted contract, the evidence of which is to be gathered partly from the original contract, and partly from the subsequent writings, sayings, and conduct of the parties themselves.

2.

CHAPTER XXXVII.

WHERE PAROL EVIDENCE IS OFFERED IN AID OF A WRITTEN
INSTRUMENT.

§ 656. It is always admissible, says Starkie, page 678

"To give effect to a written instrument, by establishing its authenticity, applying it to its proper subject-matter and also as ancillary to the latter object, for the purpose, in some instances, of explaining expressions capable of conveying a definite meaning by virtue of that explanation, and of annexing customary incidents; and also, in other instances, for the purpose of removing presumptions arising from extrinsic facts which would otherwise obstruct such application."

§ 657. 1st. As to establishing its authenticity.—It is clear that where there are attesting witnesses, or where the signature, handwriting, &c., is to be proved, before the document is receivable, parol testimony is always given in aid of the document.

§ 658. 2nd. To apply an instrument to its subject matter.-The difficulty of application may arise from a latent ambiguity: of which (see ante, § 631). The maxim of the law is ambiguitas verborum latens verificatione suppletur; nam quod ex facto oritur ambiguum verificatione facti tollitur.(y) Latent ambiguity may be removed by parol evidence for an ambiguity which arises by proof of an extrinsic fact may in the same manner be removed. So in Macdonald v. Longbottom. (*)

"In August, 1857, plantiffs had wool of their own for sale, which consisted of the clip of their own farm, and which clip was then on their own farm and the clips ofsome neighbouring farms, which latter clips were not then on their own premises. In a conversation between the plantiffs and S., the defendant's

agent, they informed him what clips they had for sale, mentioned to him the names of them, and that the quantity was 2,300 stones, 100 stones more or less. In a letter in August, plaintiffs mentioned that two of the clips had been sold, but that they had succeeded in getting the promise of another superior clip in the neighbourhood, about 550 stones. In September, S. wrote to plaintiffs-"L" (defendant) "desires me to offer you for your wool 16s. per stone." Plaintiffs wrote an answer accepting the offer. In November, plaintiffs tendered 2,542 stones, which defendant rejected. In an action for not accepting the wool-Held, (affirming the judgment of the Court of Queen's Bench), that the conversation was admissible in evidence for the purpose of ascertaining what wool the contract referred to; but that the quantity of wool mentioned by the plaintiffs in that conversation did not form part of the contract, which was for the wool under the control of the plaintiffs for sale at the time, and therefore the defendant was bound to accept the quantity tendered."

The observations of Lord Abinger, C. B., in the great case of Doe dem Hiscocks v. Hiscocks, (a) are to be studied:

"The object in all cases is to discover the intention of the testator. The first and most obvious mode of doing this is to read his will as he has written it, and collect his intention from his words. But as his words refer to facts and circumstances respecting his property and his family, and others whom he names or describes in his will, it is evident that the meaning and application of his words cannot be ascertained, without evidence of all those facts and circumstances. To understand the meaning of any writer, we must first be apprised of the persons and circumstances that are the subjects of his allusions or statements; and if these are not fully disclosed in his work, we must look for illustration to the history of the times in which he wrote, and to the works of contemporaneous authors. All the facts and circumstances, therefore, respecting persons or property, to which the will relates, are undoubtedly illegitimate, and often necessary evidence, to enable us to understand the meaning and application of his words.

"Again, the testator may have habitually called certain persons or things by peculiar names, by which they were not commonly known. If these names should occur in his will, they could only be explained and construed by the aid of evidence to show the sense in which he used them, in like manner, as if his will were written in cypher, or in a foreign language. The habits of the testator in these particulars must be receivable as evidence to explain the meaning of his will.

"But there is another mode of obtaining the intention of the testator, which is by evidence of his declarations, of the instructions given for his will, and

(a) 5 M. and W. 368.