acceptor, 51 drawer, 52 or guarantor 53 is other than the obligation imposed by the custom of merchants upon persons who sign apparently in such capacity. A note in form joint,54 or joint and several, 55, 56 cannot be shown by parol to impose obligations other than those appropriate to that form. Similarly an indorsement cannot be shown to be merely a transfer without recourse or a guaranty of identity, or anything other than an indorsement within the custom of merchants.57 Whether this principle is applicable to an irregular or anomalous indorsement was matter of much dispute prior to the enactment of the Uniform Negotiable Instruments Law. 58 This statute,

now in force in nearly all of the United States, provides, 59 that "where a person not otherwise a party to an instrument places thereon his signature in blank before delivery, he is liable as indorser." In spite of this language, however, it has been held in several States 60 that parol evidence is still admissible to show as between the parties the liability which was actually intended. It has been well said that such decisions nullify the plain language of the statute; 61 and in Florida and Maryland contrary decisions have been made.62 Where an indorsement is in blank, it has been said that there is no complete contract, but merely authority to write a contract above the signature. But by the custom of merchants the terms of the only contract which is authorized to be written over a blank indorsement are fixed, and there seems no more propriety in admitting evidence to vary the contract to be implied from the form of the instrument than if the terms were fully written out.63 This argument is strengthened by the provisions of the Negotiable Instrument Law that "The signature of the indorser without additional words is a sufficient indorsement," 64 and that an instrument indorsed in blank is payable to bearer,65 for under these provisions it can hardly be said that a blank indorsement is incomplete. A parol agreement that an instrument need not be paid, or need not be paid in a certain contingency, or may be paid wholly or partly in merchandise or shall not be sued on when due, or shall be renewed, is also in violation of the parol

59 Sec. 64, infra, § 1161.

"Haddock Blanchard & Co., Inc., v. Haddock, 192 N. Y. 499, 85 N. E. 682, 19 L. R. A. (N. S.) 136; Kohn v. Consolidated Butter & E. Co., 30 N. Y. Misc. 725, 63 N. Y. S. 265; Mercantile Bank v. Busby, 120 Tenn. 652, 113 S. W. 390. To the same effect is Long v. Gwin, 188 Ala. 196, 66 So. 88, 7 L. R. A. 599. The court does not cite the Negotiable Instruments Law though it was in force in the State. See also Jenkins v. Coomber, [1898] 2 Q. B. 168.

61 Brannan, Negotiable Instruments Law (2d ed.), 78.

62 Baumeister v. Kuntz, 53 Fla. 340,

42 So. 886; Lightner v. Roach, 126 Md. 474, 95 Atl. 62. See also Tucker v. Mueller, 287 Ill. 551, 122 N. E. 847.

63 Torbert v. Montague, 38 Col. 325, 87 Pac. 1145; Seabury v. Hungerford, 2 Hill, 80, 82; Charles v. Denis, 42 Wis. 56, 24 Am. Rep. 383. Such an indorsement cannot be shown to have been made without recourse. Randle v. Davis Coal Co., 15 App. Dist. Col. 357; Matthews v. Richards, 13 Ga. App. 412, 79 S. E. 227. See also Woodward v. Foster, 18 Gratt. 200.

64 N. I. L., Sec. 31, infra, § 1149. 65 Id. Sec. 9 (5), 34; infra, §§ 1139, 1151.

evidence rule.66 Where parol agreements have been allowed to modify the apparent effect of contracts on negotiable paper, various explanations have been given. As for instance, that the effect of the parol evidence was to show lack of consideration, or that for other reasons no contract whatever had been entered into. While this may explain some cases, it will not explain all. It has also been suggested, that the avoidance of circuity of action is the real reason for admitting evidence of the parol agreement where it has been held admissible. The parol evidence offered, it is argued, shows a collateral agreement which would justify a cross action if recovery were allowed on the negotiable instrument. But the parol evidence rule as ordinarily applied does not merely exclude proof of prior or contemporaneous oral agreements when suit is brought upon the written contract, but denies validity to the oral agreement

66 Hoare v. Graham, 3 Camp. 57; Bank of United States v. Dunn, 6 Pet. 51, 8 L. Ed. 316; Payne v. Mutual Life Ins. Co., 141 Fed. 339, 72 C. C. A. 487; Rice v. Gilbreath, 119 Ala. 424, 24 So. 421; Harmon v. Harmon, 131 Ark. 501, 199 S. W. 553; Dorsey v. Armor, 10 Colo. App. 255, 50 Pac. 726; Johnson v. Cobb, 100 Ga. 139, 28 S. E. 72; Lunsford v. Malsby, 101 Ga. 39, 28 S. E. 496; Jensen v. McConnell, 31 Idaho, 87, 169 Pac. 292; Clayes v. White, 65 Ill. 357; Moore v. Prussing, 165 Ill. 319, 46 N. E. 184; Clinton v. Royal, 203 Ill. App. 248; Graff v. Fox, 204 Ill. App. 598; Dominion Nat. Bank v. Manning, 60 Kans. 729, 57 Pac. 949; Slusher v. Conant, 18 Ky. L. Rep. 660, 37 S. W. 579; Ockington v. Law, 66 Me. 551; Henry Woods' Sons Co. v. Schaefer, 173 Mass. 443, 53 N. E. 881, 73 Am. St. Rep. 305; Central Sav. Bank v. O'Connor, 139 Mich. 82, 102 N. W. 280; Farwell v. St. Paul Trust Co., 45 Minn. 495, 48 N. W. 326, 22 Am. St. Rep. 742; Lake Harriet State Bank v. Miller, 138 Minn. 481, 164 N. W. 989; Van Etten v. Howell, 40 Neb. 850, 59 N. W. 389; Chaddock v. Vanness, 35 N. J. L. 517, 10 Am. Rep.

256; Stiles v. Vandewater, 48 N. J. L. 67, 4 Atl. 658; Block v. Stevens, 72 N. Y. App. Div. 246, 76 N. Y. S. 213; Bijur Motor &c. Co. v. Eclipse Mach. Co., 243 Fed. 600, 156 C. C. A. 298 (N. Y. D. C.); Western Carolina Bank v. Moore, 138 N. C. 529, 51 S. E. 79; Cherokee County v. Meroney, 173 N. C. 653, 92 S. E. 616; First State Bank v. Kelly, 30 N. Dak. 84, 152 N. W. 125; Colvin v. Goff, 82 Oreg. 314, 161 Pac. 568, L. R. A. 1917 C. 300; Homewood People's Bank v. Heckert, 207 Pa. 231, 56 Atl. 431; Lewis v. Wilson, 108 S. Car. 47, 93 S. E. 242; Black Hills Trust & Sav. Bank v. Plunkett (S. Dak.), 166 N. W. 527; Hancock v. Edwards, 7 Humph. 349; Duty v. Sprinkle, 64 W. Va. 39, 60 S. E. 882. But see Rosentock v. Montague, 28 N. Y. Misc. 483, 59 N. Y. S. 500; Quin v. Sexton, 125 N. C. 447, 34 S. E. 542; Farrington v. McNeill, 174 N. C. 420, 93 S. E. 957; Clinch Valley Co. v. Willing, 180 Pa. 165, 36 Atl. 737, 57 Am. St. Rep. 626; Gandy v. Weckerly, 220 Pa. 285, 69 Atl. 858, 18 L. R. A. (N. S.) 434.

67 2 Ames Cas. Bills & Notes, 804.

altogether.68 If, therefore, parol evidence is more freely allowed in case of negotiable instruments than in that of other written contracts it must be for the reason suggested at the beginning of the section.

§ 645. Agreements collateral to deeds.

In a number of decisions parol agreements made by the grantor in a deed of conveyance or lease as part of the transaction, have been enforced.687 The same is true in many jurisdictions where an insurance policy has been involved.69

These decisions seem probably based on the fact that the written transaction between the parties was a formal deed of conveyance in which it was inappropriate to insert any minor collateral matter. But a parol agreement which contradicts the express or implied terms of a sealed instrument is of course inadmissible,70 as where proof of a parol reservation of part of the property conveyed, is offered.71

* Supra, § 631.

634 Morgan v. Griffith, L. R. 6 Exch. 70 (agreement by lessor to keep down rabbits); Erksine v. Adeane, L. R. 8 Ch. 756 (agreement by lessor to kill the game and not let the shooting); Angell v. Duke, L. R. 10 Q. B. 174 (agreement by lessor to repair and send furniture to leased premises); Henshaw v. Smith, 102 Kans. 599, 171 Pac. 616 (agreement to pay for improvements and expense of moving); Page v. Monks, 5 Gray, 492 (agreement to pay for filling land); Carr v. Dooley, 119 Mass. 294 (agreement to build a sewer); McCormick v. Cheevers, 124 Mass. 262 (agreement to pay for filling); Durkin v. Cobleigh, 156 Mass. 108, 30 N. E. 474, 17 L. R. A. 270, 32 Am. St. Rep. 436 (agreement to grade and build a street and cause city water to be put in); Rackemann v. Riverbank Imp. Co., 167 Mass. 1, 44 N. E. 990, 57 Am. St. Rep. 427 (agreement not to sell other land below a certain price); Drew v. Wiswall, 183 Mass. 554, 67 N. E. 666; Scott v. Asbury (Mo. App.), 198 S. W. 1131 (agreement

by vendor of house to transfer medical practice with it); Kidd v. New Hampshire Traction Co., 74 N. H. 160, 66 Atl. 127; Webber v. Loranger (N. H.), 103 Atl. 1050 (agreement of lessor to repair premises); Mayer v. Rothstein, 167 N. Y. S. 503 (agreement as to repairs of leased premises); Shughart v. Moore, 78 Pa. 469; Wolfe v. Arrott, 109 Pa. 473, 1 Atl. 333 (cf. Wood v. Carson, 257 Pa. 522, 101 Atl. 811). See also Kernodle v. Kernodle, 174 N. C. 441, 93 S. E. 956 (bond for money).

69 See infra, § 749.

70 Edison, etc., Co. v. Gibby Foundry Co., 194 Mass. 258, 80 N. E. 479; Lozier v. Hill, 68 N. J. Eq. 300, 59 Atl. 234; Wallace v. Langston, 52 S. Car. 133, 29 S. E. 552. But see Mereness v. De Lemos, 91 Conn. 651, 101 Atl. 8, where it was held contrary to Edison, etc., Co. v. Gibby Foundry Co., supra, that an oral agreement by a grantor to pay taxes on the granted premises, was effectual though the deed contained a covenant against encumbrances.

71 Fiske v. Soule, 87 Cal. 313, 25 Pac. 430; Hisey v. Troutman, 84 Ind.

§ 646. The parol evidence rule does not exclude merely oral

agreements.

As the basis of the parol evidence rule is that a certain writing or writings have been agreed upon by the parties or assumed by them as an integration or memorial of their agreement upon a certain matter, it necessarily follows that any transaction between them, outside of this memorial, cannot affect their obligations in regard to that matter. It will be of no consequence whether such outside matter is oral or written.72 Nevertheless where there are several writings relating to the same matter, and one of them does not appear on its face to be a revision or substitute for another, it will generally be easier to find as a fact that the last writing was intended merely to supplement not to supersede the earlier writing or writings than a corresponding finding would be if the earlier agreements were oral.

§ 647. Applications of the parol evidence rule to third persons. It is commonly said that the parol evidence rule is only applicable to the parties to a contract and does not apply to third persons, or only applies to them when they are trying to enforce rights under the contract.73 This statement is likely

115; Bricker v. Whisler, (Ind. App.), 117 N. E. 550; Brown v. Thurston, 56 Me 126, 96 Am. Dec. 438; Cauble v. Worsham, 96 Tex. 86, 70 S. W. 737, 97 Am. St. Rep. 871. In Caveny v. Curtis, 257 Pa. 575, 101 Atl. 853, 654, the court said: "The general rule is that preliminary agreements and understandings relating to the sale of land become merged in the deed. This rule, however, does not apply to independent covenants or provisions in an agreement of sale not intended by the parties to be incorporated in the deed. In such case the delivery of the conveyance is merely a part performance of the contract, which remains binding as to its further provisions. Seldon v. Williams, 9 Watts, 9; Walker v. France, 112 Pa. 203, 5 Atl. 208; Close v. Zell, 141 Pa. 390, 21 Atl. 770, 23 Am. St. Rep. 296."

72 Wigmore on Evidence, § 2400.

73 Sigua Iron Co. v. Greene, 88 Fed. 207, 31 C. C. A. 477; O'Shea v. New York, C. & St. L., etc., R. Co., 105 Fed. 559, 44 C. C. A. 601; Central Coal, etc., Co. v. Good, 120 Fed. 793, 57 C. C. A. 161; Coleman v. Pike Co., 83 Ala. 326, 3 So. 755, 3 Am. St. Rep. 746; Dunn v. Price, 112 Cal. 46, 44 Pac. 354; Harts v. Emery, 184 Ill. 560, 56 N. E. 865; Northern Assur. Co. v. Chicago, etc., Assn., 198 Ill. 474, 64 N. E. 979; Hubbard v. Harrison, 38 Ind. 323; Burns v. Thompson, 91 Ind. 146; Livingston v. Stevens, 122 Iowa, 62, 94 N. W. 925; Kellogg v. Tompson, 142 Mass. 76, 6 N. E. 860; Johnson v. Von Scholley, 218 Mass. 454, 106 N. E. 17; National Car, etc., Builder v. Cyclone, etc., Co., 49 Minn. 125, 51 N. W. 657; McKim v. Metropolitan St. Ry. Co., 196 Mo. App. 544, 196