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 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. 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 23 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. 29 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. 31 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. |