Where the Statute of Frauds requires a contract to be in writing the whole contract must be in writing, and oral changes or additions either contemporaneous or subsequent are necessarily invalid apart from the parol evidence rule.65 66 The application to unsealed contracts of a prohibition of contemporary oral agreements seems to have been first made owing to a mistaken analogy with sealed instruments." But the analogy of sealed instruments has not been completely followed and it is important to observe that the reasons which forbid the addition of oral extensions to formal contracts and to contracts within the Statute of Frauds are not applicable to other written contracts. In dealing with the latter we have to do only with the parol evidence rule itself, while in dealing with the former we have not only that rule to consider, but other principles as well. § 632. Scope of the rule. Wigmore in his keen analysis of the subject conceives of the so-called parol evidence rule as in reality a group of rules defining the constitution of legal acts, and he divides every legal act into four possible elements: "(A), The Enaction, or Creation, of the act; (B), its Integration, or embodiment in a single memorial, when desired; (C), its Solemnization, or fulfilment of the prescribed forms, if any; and (D), the Interpretation, or application of the act to the external objects affected by it." 67 The enaction or creation of the act is concerned with the question whether an act has been created and, if so, whether it is voidable. For instance, whether a formal contract has been delivered or whether a contract is voidable for fraud. The integration of the act consists in embodying it in a single memorial as a writing. The solemnization concerns the forms which the law requires, as signature of a memorandum under the Statute of Fraudsseals on bonds or deeds, certain requisites in negotiable paper. See supra, §§ 592 et seq. "Meres v. Ansell, 3 Wils. 275. See comment of Thayer, in Preliminary Treatise on Evidence, p. 402. 67 Wigmore on Evidence, § 2401. It should be observed that (A), (B) and (C) may all take place simultaneously. There may be no legal act until (B) and (C) have occurred. The interpretation defines the effect of the act in its application to external objects. These various problems are doubtless closely connected with the parol evidence rule, and in particular cases there is often confusion in distinguishing one principle from another. Nevertheless what is known as the parol evidence rule is but a single rule. As applied to contracts, it assumes that there has been a legal act consisting of a promise or set of promises; it also assumes the integration of that act in a written memorial. It assumes the proper interpretation of a written memorial according to some standard which the law adopts; and these assumptions being made, excludes from consideration all other elements of the act though they might have been material had there been no integration in a written memorial. In other words, the written memorial, as interpreted by the law, is, for legal purposes, the sole act of the parties in regard to the matter up to the time of the integration. In speaking of the rule, Wigmore says:-68 "(1) The parol-evidence rule is not a rule of evidence; 68 (2) nor is it only a rule for things parol; (3) nor is it a single rule; (4) nor is it all of the rules that concern either parol or writing; (5) nor does it involve the assumption that a writing can possess, independently of the surrounding circumstances, any inherent status or efficacy." All of these statements seem true except the third, that the rule is not a single rule. (All courts agree that if the parties have integrated their agreement into a single written memorial, all prior negotiations and agreements in regard to the same subject-matter are excluded from consideration whether they were oral or written. All courts agree also that subsequent agreements may be shown, and are not rendered ineffective by the prior writing.69 All courts agree that the written memorial must be interpreted according to legal rules, and that when so interpreted meanings may sometimes be given to it which would not have been apparent without parol evidence. The difference of decision concerns this question: When is an extrinsic 68 Wigmore on Evidence, § 2401. 68a Upon this, see Thayer, Preliminary Treatise on Evidence, 390 et seq. 69 If the prior writing was under seal, the subsequent act may be ineffectual. See infra, § 1849, but this depends on the rules governing sealed instruments, not on the parol evidence rule. agreement or term of an agreement which existed prior to the integration, or was made simultaneously with it, so far a separate and distinct matter as to be capable of existence as an independent legal act? and how far, on the other hand, must it be disregarded as a futile attempt to change the effect of the legal act integrated in the written memorial? The parol evidence rule does not forbid the contradiction of an instrument which purports merely to recite facts-like a receipt.70 How far recitals of fact in a deed may be contradicted has been previously considered.71 § 633. Integration depends upon intent. The parol evidence rule does not apply to every contract of which there is written evidence, but "only applies where the parties to an agreement reduce it to writing, and agree or intend that that writing shall be their agreement." 72 It is not essen tial to integration that the writings in question should be of a formal character. Letters and telegrams are sufficient." Acceptance of a written contract as such is sufficient though it is not signed by the party accepting it.74 On the other hand, 70 "A receipt in full of all claims and demands, given as evidence of such settlement, does not conclude the parties as to a claim which affirmatively appears not to have been included in the settlement negotiations." Held v. Keller, 135 Minn. 192, 160 N. W. 487, 490, citing: 1 Dunnell's Dig. 44; Matheney v. Eldorado, 82 Kans. 720, 109 Pac. 166, 28 L. R. A. (N. S.) 980; Harrison v. Henderson, 67 Kans. 194, 72 Pac. 875, 62 L. R. A. 760, 100 Am. St. Rep. 386. See also Hudson v. Merchants Reserve L. Ins. Co., 204 Ill. App. 308; American Home L. Ins. Co. v. Citizens' State Bank (Okl.), 168 Pac. 437; Jones v. Campbell, (Vt. 1917), 102 Atl. 102; Jones-RosquistKillen Co. v. Nelson, 98 Wash. 539, 167 Pac. 1130. 71 Supra, § 115a. 72 Pollock, C. B., Harris v. Rickett, 4 H. & N. 1. See also Eustis Mining 73 Co. v. Beer, 239 Fed. 976, 982; Chamberlain v. Lesley, 39 Fla. 452, 22 So. 736; Hills v. Hopp, 201 Ill. App. 554; Bice v. Siver, 170 Ia. 255, 152 N. W. 498; Graffam v. Pierce, 143 Mass. 386, 9 N. E. 819; Herring-Hall-Marvin Safe Co. v. Balliet, 38 Nev. 164, 145 Pac. 941; Chapin v. Dobson, 78 N. Y. 74, 34 Am. Rep. 512; Routledge v. Worthington Co., 119 N. Y. 592, 23 N. E. 1111; H. Leonard Simmons Co. v. Goldfarb, 150 N. Y. S. 547; Faust v. Rohr, 167 N. C. 360, 83 S. E. 622; City Messenger Co. v. Postal Telegraph Co., 74 Oreg. 433, 145 Pac. 657. 73 Calcutta, etc., Co. v. DeMattos, 32 L. J. (N. S.) Q. B. 322; Brown v. Davidson, 42 Okl. 598, 142 Pac. 387. 74 Manufacturers', etc., Bureau v. Everwear Hosiery Co., 152 Wis. 73, 138 N. W. 624, 42 L. R. A. (N. S.) 847. See also supra, § 90. where it is contemplated that there shall be a later writing integrating the agreement of the parties, the contents of an earlier writing may be contradicted by parol.75 Since it is only the intention of the parties to adopt a writing as a memorial which makes that writing an integration of the contract, and makes the parol evidence rule applicable, any expression of their intention in the writing in regard to the matter will be given effect. If they provide in terms that the writing shall be a complete integration of their agreement or that it shall be but a partial integration, or no integration at all, the expressed intention will be effectuated.76 The parties, however, rarely express their intention upon this point in the writing, and if the court may seek this intention from extrinsic circumstances, the very fact that parties made a contemporaneous oral agreement will of itself prove that they did not intend the writing to be a complete memorial. The only question, open would be whether such a contemporaneous oral agreement was in fact made. Even if the oral agreement is repugnant to the writing, what was orally agreed would be of equal importance with what was written, since its existence would prove that there was no complete integration of the contract in regard to the matter to which it related. The parol evidence rule would then be of importance only as establishing a presumption that prior and contemporaneous oral agreements and negotiations were merged in the writing, but the practical value of the rule would be much impaired if either party to a writing were allowed to rebut the presumption by proof of any contemporaneous oral agreement. Certainly the law does not permit this. The question arises chiefly where it is asserted not that there is no integration at all, but only a partial integration. It is generally held that the contract must appear on its face to be incomplete in order to permit parol evidence of additional terms." Frequently, it is not a necessary inference 75 Brautigam v. Dean, 86 N. J. 676, 89 Atl. 760. 76 Samuel H. Chute Co. v. Latta, 123 Minn. 69, 142 N. W. 1048. 77 Seitz v. Brewers' Refrigerating Co., 141 U. S. 510, 35 L. Ed. 837, 12 S. Ct. 46; Dennis v. Slyfield, 117 Fed. 474, 54 C. C. A. 520; Telluride Power from the writing itself either that it is a statement of the whole agreement, or that it is not. In such a case it has been held that parol evidence is admissible to show which is the fact.78 The difficulty with such a principle lies in its application. No written contract which does not in terms state that it contains the whole agreement (and few do so provide though it would be generally a wise provision) precludes the possible supposition of additional parol clauses, not inconsistent with the writing. The matter has been well summed up by Finch, J.: 79 "If we may go outside of the instrument to prove that there was a stipulation not contained in it, and so that only part of the contract was put in writing, and then, because of that fact, enforce the oral stipulation, there will be little of value left in the rule itself. The writings which are protected from the effect of contemporaneous oral stipulations are those containing the terms of a contract between the parties, and designed to be the repository and evidence of their final intentions. If upon inspection and study of the writing, read, it may be, in the light of surrounding circumstances in order to its proper understanding and interpretation 80 it appears to contain the engagements of the parties, and to define the object and measure the extent of such engagement, it constitutes the contract between them, and is presumed to contain the whole of that contract." § 634. It may be shown that the writing has never become effective. The parol evidence rule does not become applicable unless the parties have assented to a certain writing or writings as the statement of a contract between them. Accordingly it not only may be shown by parol evidence that a writing was N. Y. 133, 27 N. E. 961; Dixon v. 73 Malpas v. London & S. W. Ry. Brennecke v. Heald, 107 Ia. 376, 77 79 Eighmie v. Taylor, 98 N. Y. 288, 294. 80 The ordinary principles of interpretation should be applied and therefore evidence of surrounding circumstances admitted. Forsyth Mfg. Co. v. Castlen, 112 Ga. 199, 37 S. E. 485, 81 Am. St. Rep. 28. |