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CH. V. s. 12. common law, competent to the parties at any time before breach Construction
of it, by a new contract not in writing, either altogether to waive, of Contracts
(Parol dissolve, or annul the former agreement, or in any manner to add Ecidence).
to or abstract 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 subsequent verbal terms engrafted
on what will then be left of the written agreement (m). Contracts Contracts required by the Statute of Frauds (see ante, p. 76) within Statute of
to be in writing cannot be altered or even partly rescinded except Frauds.
by writing (n); but it appears also that such contracts can be Goss v. Lord Nugent.
wholly rescinded by parol, as has been more than once intimated (0), and once expressly decided (p). The reason for this is simply that the Statute of Frauds, though it requires that the contracts named therein must be in writing to be sued upon, does not require that a dissolution of them must be in writing also, and that a party setting up the dissolution of a contract is not
the “party charged " with it. Deeds.
And so, in the case of a deed, a subsequent agreement, not under seal, dispensing with, or varying the time or mode of performing an act covenanted to be done, cannot be pleaded in bar to an action on the deed, for non-performance of the act in
the manner prescribed (9). Evidence of Again : in many cases evidence of custom or usage is admiscustom or usage.
sible, for the purpose of annexing incidents to the terms of a written contract, concerning which the contract itself is entirely
silent (r). Limitations But where evidence of custom or usage is admitted, to add to, of rule as to admissibility
or in any manner to affect the construction of a written contract, of parol it is admitted only on the ground that the parties who made the evidence.
contract were both cognizant of the usage, and must be presumed to have made their agreement with reference to it (8).
And this rule is, likewise subject to the qualification—that the peculiar sense which it is proposed, by the evidence, to attach to the words of the contract, must not be inconsistent, either expressly or by implication, with the terms of the written instrument (t).
(m) Per Cur., Goss v. Lord Nugent (1833), 5 B. & Ad. 58.
(n) Harveyv. Grabham (1836), 5 A. & E. 61; Goss v. Lord Nugent (1833), 5 B. & Ad. 58 ; Noble v. Ward (1867), L. R., 2 Ex. 135, Ex. Ch. ; Sanderson v. Graves (1875), L. R., 10 Ex. 234 ; Stead v, Dawber (1839), 10 A. & E. 57.
(0) In Goss v. Lord Nugent (1833), 5 B. & Ad. 58, and in Price v. Dyer (1810), 17 Ves., at p. 363.
(P) Goman v. Salisbury (1684), Veri. 240.
(9) Thompson v. Brown (1817), 7 Taunt. 656 ; Cordwent v. Hunt (1818), 8 Taunt. 596.
(9-) See Wigglesworth v. Dallison (1779), 1 Sm. L. C. and cases collected in notes, and see Lucas v. Bristow (1858), E., B. & E. 907.
(s) Kirchner v. Venus (1859), 12 Moo, P. C. 361. And see per Tindal, C.J., Lewis v. Marshall (1844), 7 M. & G. 729, 744.
(t) Dale v. Humfrey (1858), E., B. & E. 1004 ; Parker v. Ibbetson (1858), 4 C. B.,
And it is doubtful whether any incident can be added by Ch. V. s. 12.
Construction usage to a contract made in this country, which the parties are
of Contracts not competent to introduce into it by express stipulation; as, (Parol
Evidence). for instance, the incident of negotiability, in the case of an instrument which is not, by our law, negotiable (u).
It has, moreover, been held, that parol evidence is admissible to Evidence to show that when a document, which is apparently an agreement, instrument
show that was signed, the parties expressly stated that they did not intend does not con
tain whole it to be the record of any agreement between them (c); or to agreement. show that the written instrument does not contain the whole of the contract (y); or, where there are alterations on the face of the document, to show in what state it was when it was agreed to and signed by the parties (z).
So, parol evidence is admissible to show, that at the time a Escrow. written paper was signed by the parties, they expressly agreed that it was not to take effect as a contract, except on a certain condition (a); or that it was signed on the faith of a collateral Collateral verbal agreement, which had not been performed (6); as where a
agreement. tenant agreed to become so on condition that the landlord would keep down rabbits (c), or repair and furnish (d).
Parol evidence is alway's admissible to defeat a deed or written Evidence of contract on the ground of illegality, duress, or fraud ; although gality.
fraud or ille. such evidence directly contradict the statements contained in the instrument (e). And this rule does not contravene the principles we have just been considering; for the effect of such evidence is to show that the instrument never had any operation. Thus, evidence may be given of fraudulent misrepresentations, made by N. S. 346 ; Suse v. Pompe (1860), 8 id. Joint Stock Bank (1888), 13 App. Cas. 538 ; Field v. Lelean (1861), 6 H. & N. 333; Williams v. Colonial Bank (1888), 617, Ex. Ch. ; per Cur., Spartali v. 38 Ch. D. 388, C. A. Benecke (1856), 10 C. B. 212, 222; and (2) Harris v. Rickett (1859), 4 H. & N. see Hayton v. Irvin (1879), 5 C. P. D. 1, 7; Rogers v. Hadley (1863), 2 H. & C. 130, C. A.
227, 249. (u) Crouch v. Crédit Foncier of Eng. (y) Lindley v. Lacey (1861), 17 C. B., land (1873), J.. R., 8 Q. B. 374 ; aud see N. S. 578; Malpas v. London and South Goolwin v. Robarts (1876), 1 App. Cas. Western Rail. Co. (1866). L. R., 1 C. P. 476. In this case the Exchequer Cham- 336. ber expressed an opinion to the effect (z) Stewart v. Eddlowes (1874), L. R., that, by proof of general usage, such an 9 C. P. 311. incident might be added to a contract (a) Pym v. Campbell (1856), 6 E. & B. made in this country; but in the Court 370 ; Wallis v. Littell (1861), 11 C. B., of Exchequer and House of Lords, the N. S. 369. case appears to have been decided on the (6) Morgan v. Griffith (1871), L. R., ground, that the instrument then in 6 Ex. 70; Erskine v. Å deane (1873), question was a forcign instrument, which L. R., 8 Ch. 756. was, by the custom of all the stock- (c) Morgan v. Griffith (1871), L. R., markets in Europe, negotiable ; and 6 Ex. 70. that, in such a case, our law would (d) Angell v. Duke (1875), L. R., 10 follow the custom ; and see Fine Art Q. B. 174. Society v. Potter (1886), 17 Q. B. D. (e) See Wright v. Crookes (1810), 1 705, C. A. ; London and County Bank: Co. Scott, N. R. 685 ; Collins v. Blantern v. London and River Plate Co. (1887), 20 (1767), 2 Wils. 347 ; 1 Sm. L. ('., and Q. B. D. 232 ; Earl of Sheffield v. London notes thereto.
CH, V. s. 12. the defendant to the plaintiff as to the value of a business, for Construction the purchase of which the plaintiff was in treaty with the defenof Contracts
(Parol dant; although such representations were not embodied in the Evidence).
contract of sale, or in the deed whereby the premises were conveyed to the plaintiff (f). And so, evidence is admissible to impeach the consideration for a bill of exchange (g).
(f) Dobell v. Stevens (1825), 3 B. & C. (g) Abbott v. Hendricks (1840), 1 M. & G. 623. Aliter, in the case of misrepresen- 791 ; and see ss. 27-30 of the Bills of tation without fraud, not embodied in Exchange Act, 1882, 45 & 46 Vict. the written agreement; per Lord Ten- c. 61, and see post, Ch. XVI., “Bills of terden, C.J., Flinn v. Tobin (1829), 1 Exchange.” M. & M. 367.
THE STAMPING OF CONTRACTS.
PAGE 1. Contracts generally charged with Duty.....
117 2. Contracts specifically charged with Duty
118 3. Stamping after Execution and
for Purposes of Evidence ... 120 4. What Contracts require a Stamp 122 (a) Generally.....
122 (b) Character of Document as to Stamp
PAGE (c) Requirement of more
Stamps than one....... 130 5. Effect of Want of Stamp
132 (a) General Rule
132 (b) Restamping
(a) Less than 51. Value 135
SECT. 1.-Contracts generally charged with Duty. The consolidating Stamp Act, 1891, 54 & 55 Vict. c. 39 (a), which reproduces the former consolidating Act of 1870 and its amending Acts with comparatively immaterial amendments, by sect. 14 (4), as we shall see presently (see p. 121), prohibits the giving of unstamped documents in evidence, and the first section enacts that, subject to the exemptions contained in the Act, and in any other Acts for the time being in force (b), there shall be charged on the several instruments specified in the first schedule, the several duties therein specified.
And by the said schedule, an “agreement, or any memorandum Agreements. of an agreement, made in England or Ireland under hand only, or made in Scotland without any clause of registration, and not otherwise specifically charged with any duty, whether the same be only evidence of a contract, or obligatory upon the parties from its being a written instrument,” is charged with a duty of 6d., which duty, by sect. 22 of the Act, may be denoted by an adhesive stamp, to be cancelled by the person by whom it is first executed.
But any “agreement or memorandum, the matter whereof is not of the value of 51.," is exempt from duty.
And a copy or extract, attested or in any manner authenticated, As to copies of or from any agreement chargeable with duty, is chargeable with the same duty as the agreement itself (c).
(a) See this Act and its amending (6) The exceptions are numerous, more enactments in Chitty's Statutes, 5th ed., than seventy being enumerated in Alpe's tit. “Stamps," and see also Alpe's Law of Digest. Stamp Duties, and Highmore's Stamp (c) See Sched. “ Copy or E.ctract." Acts.
CH. VI, s. 1.
But an examined copy, which is produced by a witness as
to refresh the memory of the witness as to the contents of the
SECT. 2.- Agreements specifically charged with Duty.
Letter of Allotment.
Policy of Insurance.
Bond, &c., as described in schedule to the Act.
Agreements for lease.
An agreement for lenses for any term not exceeding 35 years is,
By sects. 52 and 53 of the Stamp Act, 1891, and sched. I., tit.
(d) Braythwayte v. Hitchcock (1842), 10 M. & W. 494.