from those which directly relate to the main object. It need not be denied that such a distinction is logically conceivable or that cases can be put of promises of one sort or the other. But unquestionably to differentiate the promises in contracts as they arise, as either collateral or the reverse, is very difficult and sometimes nearly if not quite impossible. It is probable that however the matter may be phrased, the reason guiding the courts in admitting or excluding proof of additional oral terms to an apparently complete written contract, is rather practical than theoretical. Two suggestions may be made to serve as a guide to the many decisions apparently often contradicting one another, before considering the subject in detail. First that the test of admissibility is much affected by the inherent probability of parties who contract under the circumstances in question, simultaneously making the agreement in writing which is before the court, and also the alleged parol agreement. The point is not merely whether the court is convinced that the parties before it did in fact do this, but whether parties so situated generally would or might do so. If that is true, the parol agreement is so far collateral and separate from the writing as to make it admissible. The second suggestion is that the tendency of the courts is toward increasing liberality in the admission of parol agreements. § 639. Collateral parol agreements contradicting a written contract are inadmissible. The general rule is clear that a parol agreement which is in terms contradictory of the express words of a contemporaneous or subsequent written contract, properly construed, necessarily is ineffectual and evidence of it inadmissible, whether the parol agreement be called collateral or not.11 If "St. Louis, etc., Fireproofing Co. v. Standard Fireproofing Co., 195 U. S. 627, 49 L. Ed. 351, 25 S. Ct. 792; Forbes v. Taylor, 139 Ala. 286, 35 So. 855; Hodson v. Varney, 122 Cal. 619, 55 Pac. 413; Chattanooga, etc., R. Co. v. Warthen, 98 Ga. 599, 25 S. E. 988; Unity Co. v. Equitable Trust Co., 204 Ill. 595, 68 N. E. 654; Western Electric there are exceptions to the rule they are made where a formal instrument is issued in its usual form, but its terms limited by a parol agreement. 12 Even where the parol agreement is not in terms contradictory of the writing, the implication in fact of the writing may be clear that it fully expresses the whole bargain in regard to the matter in question. To contradict such an implication of fact by parol is no more permissible than to contradict the direct words of the writing, but it is often a question of extreme difficulty to determine whether the writing does, if fairly construed, imply that its statements contain the whole agreement of the parties either in regard to the whole subject-matter of the contract, or in regard to some particular provision. The test usually suggested in the cases, whether the collateral agreement "varies or contradicts" the terms of the writing, has been criticised 13 and the suggestion made that the "most satisfactory index for a judge is found in the circumstance whether or not the particular element of the alleged extrinsic negotiation is dealt with at all in the writing." Though the ordinary statement is open to misapprehension, it is not, when properly understood, open to the criticism which has been made that it involves either a contradiction in terms or reasoning in a circle. It is true that a collateral agreement if admissible, will always vary the legal effect of a writing, or there would be no occasion to prove it, and if under "variation" is included any addition to the general subject of the contract, that word certainly is inaccurate, since it would exclude all oral collateral agreements. It does not follow, however, that an oral agreement which is of value will contradict the terms of the writing. As has been seen it may contradict only the implications of fact or law which would be drawn from the writing if the collateral agreement was not admitted to proof. The index suggested by Wigmore is, very likely, more satisfactory and less open to misapprehension; but it should be observed that this is no final test which can be applied with 177 Mass. 137, 58 N. E. 162; Calmenson v. Equitable Mut. F. I. Co., 92 Minn. 390, 100 N. W. 88; Hebberd v. American Sheet Metal Lath Co., 150 N. Y. S. 72; Hatfield v. Thomas Iron Co., 208 Pa. 478, 57 Atl. 950; Minnesota Sandstone Co. v. Clark, 35 Wash. 466, 77 Pac. 803; Shaver v. Edgell, 48 W. Va. 502, 37 S. E. 664; Patterson v. Cappon, 125 Wis. 198, 102 N. W. 1083. 12 See infra, §§ 644, 645. 13 Wigmore on Evidence, § 2430. 14 unvarying regularity. When an accommodation indorser signs a note, the matter of his liability is dealt with in the writing; nevertheless the collateral agreement may be shown. When goods are sold under a written contract, the subject of the seller's liability for defects may not be dealt with at all, yet many courts exclude evidence of a parol warranty." Moreover, what is to be regarded as the "particular element of the extrinsic negotiation" is always open to question. In the case of the warranty, is the particular element the general liability of the seller in regard to the goods, or is it his liability for defects of quality? Is a warranty of title part of the same element as a warranty of quality? Is a warranty of one quality part of the same element as a warranty of another quality? There is here the same inescapable difficulty that exists when an attempt is made to determine whether the oral agreement contradicts the writing. A written promise to pay $50 is not in terms contradicted by an oral promise to pay $25 more, but the natural implication from the written promise is irresistible that $50 is the whole cash payment which the promisor is to make. This implication arises because as a matter of actual practice, one who was intending to promise $75 would put his promise in the form of a single promise to pay that sum, rather than in that of a written promise to pay $50 and a separate agreement to pay $25 in addition.15 So if the other test is applied, it may be said that the "particular element" of the alleged extrinsic negotiation is the price, and the oral agreement is inadmissible. Suppose the oral agreement instead of providing for an additional payment of $25 provided for the giving a book, is the "particular element" of this agreement payment of consideration and therefore dealt with in the writing, or payment of non-pecuniary consideration and therefore not dealt with therein? Whether under the rule as ordinarily expressed a collateral agreement tends to contradict the implications of the writing or under the suggested improvement thereon relates to a "particular element" dealt with in the "See infra, § 643. "See O'Malley v. Grady, 222 Mass. 202, 109 N. E. 829; McGarrigle v. McCosker, 83 N. Y. App. Div. 184, 82 N. Y. S. 494, affd. 178 N. Y. 637, 71 N. writing will depend in large measure on the question whether a reasonable person making such an agreement as is set up both in the writing and in the proffered parol evidence might naturally have separated the matters into two parts. § 640. Collateral agreements contradicting an implication of law. It has been questioned whether a parol agreement is admissible which definitely expresses the intent of the parties in regard to a matter covered neither expressly nor by implication of fact in the written contract between them, but concerning which the law makes an implication in the absence of express agreement. Thus where no time or place for performance is fixed, the law fixes the time or place in accordance with certain rules, which in many cases at least are based on what is reasonable rather than what is actually intended. Are these rules part of the contract and therefore does parol agreement with reference to their subject-matter contradict the writing? It is so generally held. Especially it has been held that evidence of a parol agreement that performance should be made at a particular time is inadmissible where the writing specifies no time for performance. 16 But the criticism which has been made previously 17 of the theory that the law governing a contract is necessarily adopted into the contract as part of its terms, seems applicable here. The parties to a negotiable note which does not specify the time of payment probably understand and recognize that the writing is equivalent to a promise to pay on demand, and therefore a parol agreement to pay at a fixed time would be inconsistent with the writing. 18 The legal implication from a blank indorsement also is perfectly understood by the parties, and the implication may well be given the same effect as if the indorsement were filled out, 19 but the contradiction is 16 Greaves v. Ashlin, 3 Camp. 426; Ford v. Yates, 2 M. & G. 549; Simpson v. Henderson, Moo. & M. 300; Roughton v. Brookings Lumber &c. Co., 26 Cal. App. 752, 148 Pac. 539; Jenkins v. Lykes, 19 Fla. 148, 45 Am. Rep. 19; Warren v. Wheeler, 8 Met. 97; Coon v. Spaulding, 47 Mich. 162, 10 N. W. 183; American Bridge Co. v. American &c. Steam Co., 107 Minn. 140, 119 N. W. 18 Bloom v. Horwitz, 100 N. Y. Misc. 687, 166 N. Y. S. 786. 19 See supra, § 644. one fictitiously invented by the law when an ordinary contract does not state the time for performance, and the parties orally agree on a particular time. Undoubtedly it is not always easy to determine whether an implication is one of fact, and therefore the agreement of the parties, or is one of law imposed upon the parties because of their failure to express an agreement upon the matter in question, but the distinction is none the less real. Some decisions, recognizing this, have allowed proof of parol agreement fixing the time, 20 or place 21 of performance. A contract for the shipment of goods from one place to another without specification of the route, 22 and contracts containing other legal implications have given rise to the same difference of opinion.23 § 641. Other inadmissible collateral agreements. Following the analogy of cases holding that though parol conditions precedent to the effectiveness of a written agreement may be shown, conditions subsequent may not be, 24 it has been held that parol evidence of an agreement that goods 20 Sivers v. Sivers, 97 Cal. 518, 32 Pac. 571; Wolters v. King, 119 Cal. 172, 51 Pac. 35; Bankers' Acc. Ins. Co. v. Rogers, 73 Minn. 12, 75 N. W. 747 (time for which insurance was written not being stated in policy or application may be shown by parol); Stephens-Adamson Mfg. Co. v. Bigelow, 84 N. J. L. 585, 87 Atl. 74, 86 N. J. L. 707, 92 Atl. 398. (The offer which was accepted read, "Time of delivery to be about.. from receipt by us of your acceptance." Parol evidence was admitted of the fixed time orally agreed upon.) Eichenaur . Rentz Candy Co., 43 N. Y. Misc. 151, 88 N. Y. S. 260 (term of service shown to be for one year). See also Paul v. Owings, 32 Md. 402 (a written contract to sell land for $5,000 was held not to preclude parol evidence of the manner or terms of payment, as by application on a judgment). 21 Ebert v. Arends, 190 Ill. 221, 60 N.E. 211. But see LaFarge v. Rickert, 5 Wend. 187, 21 Amer. Dec. 209; State v. Kenosha Home Tel. Co., 158 Wis. 371, 148 N. W. 877, Ann. Cas. 1916 E. 365. In Delaware v. Oregon Iron Co., 14 Wall. 579, 20 L. Ed. 779, a bill of lading not stating the place of storage was held contradicted in legal effect by a parol agreement that the goods should be stowed on deck and evidence of the agreement was held inadmissible. 22 A parol agreement fixing the route was not admitted in Webster v. Paul, 10 Ohio St. 531, but the contrary was held in Louisville, etc., R. Co. v. Duncan, 137 Ala. 446, 34 So. 988. 23 In Sowers v. Earnhart, 64 N. C. 96, a bond for $1,000 was given in 1862, payable one day after date. The court said "By presumption of law this note was solvable in Confederate money," but gave effect to a parol agreement that the bond should be paid in money good after the war. 24 See supra, § 634. |