might be returned is not admissible to qualify an absolute written contract of sale; 25 nor where there is a writing showing a sale can it be proved by parol that the transaction was a bailment. 26 Other cases where parol collateral agreements were held inadmissible are collected in the accompanying note.27 § 642. Admissible collateral agreements. Where the writing in question is a unilateral conveyance, 25 Dr. Shoop Family Medicine Co. v. Davenport, 163 N. C. 294, 79 S. E. 602. See also Grabfelder v. Vosburgh, 90 N. Y. App. Div. 307, 85 N. Y. S. 633. Cf. Gilman v. Williams, 74 Vt. 327, 52 Atl. 428. 26 Price v. Marthen, 122 Mich. 655, 81 N. W. 551; Horn v. Hansen, 56 Minn. 43, 57 N. W. 315, 22 L. R. A. 617. Cf. mortgage cases, supra, § 635. 27 Sun Printing, etc., Assoc. v. Edwards, 113 Fed. 445, 51 C. C. A. 279; Pitcairn v. Philip Hiss Co., 125 Fed. 110, 61 C. C. A. 657 (parol agreement that work under written contract should be done to defendant's satisfaction or need not be paid for); Drennen v. Satterfield, 119 Ala. 84, 24 So. 723 (parol agreement that written contract might be terminated at will); Hills v. Farmington, 70 Conn. 450, 39 Atl. 795 (parol agreement that part of price named in writing was for an alleged oral warranty); Connor v. Lasseter, 98 Ga. 708, 25 S. E. 830 (parol agreement to obtain other paid employment and credit pay received therefor on amount due under written contract); McElveen v. Southern R. Co., 109 Ga. 249, 34 S. E. 281, 77 Am. St. 371; Forsyth Mfg. Co. v. Castlen, 112 Ga. 199, 37 S. E. 485, 81 Am. St. Rep. 28 (parol agreement that goods contracted for under written contract should be of the seller's own production); Bounanni v. White Bronze Monument Co., 131 Ia. 304, 108 N. W. 524 (parol agreement that a statue should in a certain respect differ from Cf. a photograph though writing demanded a copy thereof); Walker v. Price, 62 Kans. 327, 62 Pac. 1001, 84 Am. St. 392 (parol agreement that a railroad ticket in terms limited should be unlimited); Castleman v. Southern Mut. L. I. Co., 14 Bush, 197 (parol agreement for additional compensation); Sutton v. Kentucky Lumber Co., 19 Ky. L. Rep. 1604, 44 S. W. 86 (parol agreement to furnish right of way for teams to carry lumber to be cut and hauled under written contract); Goldenberg v. Taglino, 218 Mass. 357, 105 N. E. 883 [parol agreement as to the nature of services under a written contract for general employment. Price v. Mouat, 11 C. B. (N. S.) 508]; Smith v. Smull, 69 N. Y. App. Div. 452, 74 N. Y. S. 1012; Eden v. Silberberg, 89 N. Y. App. Div. 259, 85 N. Y. S. 781; Cornwall R. Co. v. Cornwall &c. R. Co., 125 Pa. 232, 17 Atl. 427, 11 Am. St. 889; Farrell v. Coatesville, 214 Pa. 296, 63 Atl. 742 (parol agreement that rock excavation should be specially paid for at a higher rate than that named for excavation generally in written contract); Wallace v. Langston, 52 S. Car. 133, 29 S. E. 552 (parol agreement with the signer of a bond that he should not be liable); Missouri, etc., Ry. Co. v. Harrison, 97 Tex. 611, 80 S. W. 1139; Nelson v. Godfrey, 74 Vt. 470, 52 Atl. 1037 (parol agreement that letters on a tablet for which a written contract provided, should be raised). See also Empire Inv. Co. v. Mort, 169 Cal. 732, 147 Pac. 960. release or promise, it may be shown that the consideration given by the grantee or promisee therefor was wholly or partly a parol promise, 28 if the parol promise is in no way inconsistent with or contradictory of the written promise; 29 and this is generally so held even where the writing recites as consideration the receipt of a specific executed consideration.30 Again though a contract to sell a business, or to hire an employee, is in writing, a parol contemporaneous agreement not to carry on a competing business, 31 or not to assign,32 has been held admissible. Other illustrations of collateral agreements held admissible may be found in the note.33 Ewaldt v. Farlow, 62 Ia. 212, 17 N. W. 487; Weeks v. Medler, 20 Kans. 57; American, etc., Assoc. v. Dahl, 54 Minn. 355, 56 N. W. 47; Kane v. Cortesy, 100 N. Y. 132, 2 N. E. 874; Wenz v. Meyersohn, 59 N. Y. App. Div. 130, 68 N. Y. S. 1091; Playa De Oro Min. Co. v. Gage, 60 N. Y. App. Div. 1, 69 N. Y. S. 702, affd., 172 N. Y. 630, 65 N. E. 1121; Becker v. Knudson, 86 Wis. 14, 56 N. W. 192. * In Lozier v. Hill, 68 N. J. Eq. 300, 59 Atl. 234, the court refused to allow proof that the grantee under an absolute deed had promised as consideration therefor, to devise the land to the grantor. 30 See also supra, § 115a. "Durham v. Lathrop, 95 Ill. App. 429; Welz v. Rhodius, 87 Ind. 1, 44 Am. Rep. 747; Locke v. Murdoch, 20 N. Mex. 522, 151 Pac. 298, L. R. A. 1917 B. 267; Turner v. Abbott, 116 Tenn. 718, 94 S. W. 64, 6 L. R. A. (N. S.) 892. See also Webber v. Smith, 24 Cal. App. 51, 140 Pac. 37. But see contra, Brennard Mfg. Co. v. Citronelle Mercantile Co., 148 Ala. 666, 41 So. 671; Main v. Radney (Ala.), 39 So. 981; Durkin v. Cobleigh, 156 Mass. 108, 110, 30 N. E. 474, 17 L. R. A. 270, 32 Am. St. Rep. 436; Walther v. Stampfli, 91 Mo. App. 398; Wessel v. Havens, 91 Neb. 426, 136 N. W. 70, Ann. Cas. 1913 C. 1377; Smith v. Gibbs, 44 N. H. 335; Love v. Hamel, 59 N. Y. App. D. 360, 69 N. Y. S. 251; Gordon v. Parke & Lacy Mach. Co., 10 Wash. 18, 38 Pac. 755; Scholz v. Dankert, 69 Wis. 416, 34 N. W. 394. 32 Myerstown Bank v. Roessler, 186 Pa. 431, 40 Atl. 963. 33 Malpas v. London & S. W. Ry. Co., L. R, 1 C. P. 336 (a parol arrangement to carry cattle to K was made with a carrier. Later a writing was signed by the shipper, by which it was ordered that the cattle should be carried to N, an intermediate station. It was held that the parol agreement might be shown since it only supplemented, not contradicted the writing); Ditmar v. Frederick Starr Contracting Co., 249 Fed. 437, 162 C. C. A. 3 (though there was a written charter of a scow for service in and about New York Harbor proof was allowed of a parol agreement that, in case she was taken out of the harbor, the charterer should insure her for the benefit of the owner); Meader v. Allen, 110 Ia. 588, 81 N. W. 799 (size of casing orally agreed upon shown where a written building contract did not specify the size); Mt. Vernon Stone Co. v. Sheely, 114 Ia. 313, 86 N. W. 301; Rivers v. Oak Lawn Sugar Co., 52 La. Ann. 762, 27 So. 118 (that stock was sold "dividend off" shown by parol); Gould v. Boston Excelsior Co., 91 Me. 214, 39 Atl. 554, § 643. Parol evidence of a warranty. There is no more frequent application of the parol evidence rule than in cases where it is sought to attach a parol warranty to a written sale or contract to sell goods. If the writing states in terms that there is no warranty or none except what is contained in the writing, it is clear that the parol warranty is ineffectual because contradictory and not merely additional to the writing.34 Where the writing contains an express warranty, proof of an additional parol warranty is also not allowable. This is most obviously a necessary conclusion where the parol warranty concerns the same quality or attribute of the goods as the written warranty; 35 but it is also commonly held that the parol warranty is inadmissible if any express 64 Am. St. Rep. 221 (parol agreement as to the scaling of lumber contracted for in writing, admitted when the writing made no provision as to scale or scales); Cook v. Littlefield, 98 Me. 299, 56 Atl. 899; Ryder v. Faxon, 171 Mass. 206, 50 N. E. 631, 68 Am. St. Rep. 417; Hawley Down-Draft Furnace Co. v. Hooper, 90 Md. 390, 45 Atl. 456; Brown v. Bowen, 90 Mo. 184, 2 S. W. 398; Huffman v. Ellis, 64 Neb. 623, 90 N. W. 552; Creedon v. Patrick, 3 Neb. unoff. 459, 91 N. W. 872 (oral agreement where building materials should be obtained, admitted); Polakoff v. Halphen, 83 N. J. Eq. 126, 89 Atl. 996 (a written license to erect a building was supplemented by an oral agreement as to the character of the building); Daly v. Piza, 105 N. Y. App. Div. 496, 94 N. Y. S. 154; Holmboe v. Morgan, 69 Oreg. 395, 138 Pac. 1084 (a written contract for sale of automobile was supplemented by a parol agreement to give instruction); Potlatch Lumber Co. v. North Coast Produce Co., 78 Wash. 533, 139 Pac. 496. Pennsylvania seems to have gone further than most States in allowing such evidence. In Alexander v. Righter, 240 Pa. 22, 26, 87 Atl. 427, the court said: "We have ruled more than once that even where there is a written unconditinal promise to pay, in a suit thereon between the original parties, one may show a contemporaneous agreement that the promisee would look to a special fund for the payment, where such agreement constituted a part of the consideration of the written contract or operated as an inducement for entering it." Cf. Lakeside Land Co. v. Dromgoole, 89 Ala. 505, 7 So. 444; Murchi v. Peck, 160 Ill. 175, 43 N. E. 356; Harrison v. Morrison, 39 Minn. 319, 40 N. W. 66; Wilson v. Wilson, 26 Oreg. 251, 38 Pac. 185; Fuller v. Law, 207 Pa. 101, 56 Atl. 333. 34 Allen v. Young, 62 Ga. 617; Martin v. Moore, 63 Ga. 531; Stewart v. Blalock, 20 Ga. App. 488, 93 S. E. 116; Otto v. Braman, 142 Mich. 185, 105 N. W. 601; Plano Mfg. Co. v. Root, 3 N. Dak. 165, 54 N. W. 924. 35 Middletown Mach. Co. v. Chaffin, 108 Ark. 254, 157 S. W. 398; United Iron Works v. Outer Harbor Co., 168 Cal. 81, 141 Pac. 917; Barrett v. Wheeler, 71 Ia. 662, 33 N. W. 230; Rice v. Codman, 1 Allen, 377; Colt v. Demarest, 159 N. Y. App. Div. 394, 144 N. Y. S. 557; Buchanan v. Laber, 39 Wash. 410, 81 Pac. 911. warranty is in writing;36 and even where there is no express warranty contained in the writing to which the terms of a sale are reduced, extrinsic evidence of a warranty generally is excluded.37 Especially in recent years some qualification of this doctrine is to be observed in the cases. The principles applicable to contracts only partially reduced to writing find frequent application, and where the writing on its face does not appear to be a complete statement of the contract or the purchase, or is a mere memorandum or order as distinguished from a written Chandler v. Thompson, 30 Fed. 38; Wilson v. New United States Cattle Ranch Co., 73 Fed. 994, 20 C. C. A. 244, 36 U. S. App. 634; Buckstaff v. Russell, 79 Fed. 611, 25 C. C. A. 129, 49 U. S. App. 253; Johnson v. Hughes, 83 Ark. 105, 103 S. W. 184; Arden Lumber Co. v. Henderson Iron Works, 83 Ark. 240, 103 S. W. 185; Nichols v. Wyman, 71 Ia. 160, 32 N. W. 258; Electric Storage Battery Co. #. Waterloo, etc., R. Co., 138 Ia. 369, 116 N. W. 144, 19 L. R. A. (N. S.) 1183; Sullivan Machinery Co. v. Breeden, 40 Ind. App. 631, 637, 82 N. E. 107; Glackin v. Bennett, 226 Mass. 316, 115 N. E. 490; Carpenter v. Sugden, 231 Mass. 1, 119 N. E. 959; Nichols Shepard & Co. v. Crandall, 77 Mich. 401, 43 N. W. 875, 6 L. R. A. 412; Zimmerman Mfg. Co. v. Dolph, 104 Mich. 281, 61 N. W. 339. Seitz v. Brewers' Refrigerator Co., 141 U. S. 510, 12 S. C. 46, 30 L. Ed. 837; Davis Calyx Drill Co. v. Mallory, 137 Fed. 332, 69 L. R. A. 973, 69 C. C. A. 662; Marmet Coal Co. v. People's Coal Co., 226 Fed. 646, 141 C. C. A. 402; Whitehead v. Lane & Bodley Co., 72 Ala. 39; Fitch v. Woodruff & Beach Iron Works, 29 Conn. 82; Robinson v. McNeill, 51 Ill. 225; Telluride Power Co. v. Crane, 208 Ill. 218, 70 N. E. 319; Nichols v. Wyman, 71 Iowa, 160, 32 N. W. 258; Diebold Safe Co. v. Huston, 55 Kans. 104, 39 Pac. 1035, 28 L. R. A. 53; Thomson v. Gortner, 73 Md. 474, 21 Atl. 371; Frost v. Blanchard, 97 Mass. 155; Schramm v. Boston Sugar Refining Co., 146 Mass. 211, 15 N. E. 571; Durkin v. Cobleigh, 156 Mass. 108, 110, 30 N. E. 474, 17 L. R. A. 270, 32 Am. St. Rep. 436; Detroit Shipbuilding Co. v. Comstock, 144 Mich. 516, 108 N. W. 286; McCray Refrigerator & Cold Storage Co. v. Woods, 99 Mich. 269, 58 N. W. 320, 41 Am. St. Rep. 599; Day Leather Co. v. Michigan Leather Co., 141 Mich. 533, 104 N. W. 797; McCormick Harvesting Machine Co. v. Thompson, 46 Minn. 15, 48 N. W. 415; Eighmie v. Taylor, 98 N. Y. 288; Stanford v. National Drill & Mfg. Co., 28 Okl. 441, 114 Pac. 734; Scott v. Vulcan Iron Works Co., 31 Okl. 334, 122 Pac. 186, 192; Bond v. Clark, 35 Vt. 577; Case Plow Works v. Niles & Scott Co., 90 Wis. 590, 63 N. W. 1013. So a parol guarantee that an assigned claim could be effectively used as a set-off was held ineffectual. Maxfield v. Jones, 106 Ark. 346, 153 S. W. 584. In King v. Edward Thompson Co. (Ind. App.), 104 N. E. 106, a printed order contained a statement that no guaranty had been made by the salesman. This clause was erased, and evidence was offered that a guaranty had been made by the salesman, and for that reason the clause was struck out. Nevertheless the parol guaranty was held ineffectual. contract, the reason for applying the parol evidence rule is lacking and extrinsic evidence of a warranty is admitted.3 38 It must be admitted that the principle thus stated is one very difficult of application, and the decisions cited in the two notes last referred to are not all easy to reconcile on their facts. Another principle which has not yet been very clearly brought out by the cases should be plain wherever it is recognized that an affirmation or representation may form the basis of liability in warranty even though there is no intent to warrant, and the representations cannot fairly be construed as an offer to contract. The basis of the parol evidence rule is that it must be assumed that when parties contracted in regard to a certain matter and reduced their agreement to writing, the writing expressed their whole agreement in regard to that matter. This reason is obviously inapplicable to a situation where an obligation is imposed by law irrespective of any intention to contract. Such is frequently the case with warranties.39 Therefore, if a buyer is induced by positive statements of fact to enter into a written contract for the purchase of goods, there seems no reason why these statements should not be admitted in evidence. False and fraudulent statements inducing the formation of a written contract may, of course, be proved and if a false but honest statement, inducing the buyer to enter into the bargain, renders the seller liable as a warrantor though he does not intend to contract, there seems every reason for admitting evidence of such statements in spite of the fact that the bargain was 38 Allen v. Pink, 4 M. & W. 140; Harris v. Marsh, 217 Fed. 555, 133 C. C. A. 407; Florence Wagon Works v. Trinidad Mfg. Co., 145 Ala. 677, 40 So. 49; Ruff v. Jarrett, 94 Ill. 475; Rittenhouse-Winterson Auto Co. v. Kissner, 129 Md. 102, 98 Atl. 361; Jackson v. Mott, 76 Iowa, 263, 41 N. W. 12; Chicago Telephone Supply Co. v. Morne &c. Tel. Co., 134 Ia. 252, 111 N. W. 935; Neal v. Flint, 88 Me. 72, 33 Atl. 669; White Automobile Co. v. Dorsey, 119 Md. 25, 86 Atl. 617; Atwater v. Clancy, 107 Mass. 369; Leavitt v. Fiberloid Co., 196 Mass. 440, 82 N. E. 682; Phelps v. Whitaker, 37 Mich. 72; Palmer v. Roath, 86 Mich. 602, 49 N. W. 590; Hersom v. Henderson, 21 N. H. 224, 53 Am. Dec. 185; Perrine v. Cooley, 39 N. J. L. 449; Charter Gas Engine Co. v. Kellam, 79 N. Y. App. Div. 231; Brigg v. Hilton, 99 N. Y. 517, 3 N. E. 51, 52 Am. Rep. 63; Mayer v. Dean, 115 N. Y. 556, 22 N. E. 261, 5 L. R. A. 540; Routledge v. Worthington Co., 119 N. Y. 592, 23 N. E. 1111; Hadley v. Bordo, 62 Vt. 285, 19 Atl. 476; Red Wing Mfg. Co. v. Moe, 62 Wis. 240, 22 N. W. 414; McMullen v. Williams, 5 Ont. App. 518. 39 See Williston on Sales, § 197. |