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 essential 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, "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. 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." 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. 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. 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. never executed or delivered as a contract,81 or that assent thereto was impaired by fraud,82 illegality,83 duress,84 mistake,85 or failure of consideration, rendering the contract void or voidable; but also (if the writing is unsealed) that parties agreed by parol that the writing in question should not become effective until some future day or the happening of some contingency, if this is not inconsistent with the express terms of the writing. Even where the writing itself states one con 87 81 Verzan v. McGregor, 23 Cal. 339; Uhl v. Moorhous, 137 Ind. 445, 37 N. E. 366; Rittenhouse-Winterson Auto Co. v. Kissner, 129 Md. 102, 98 Atl. 361. 82 Suravitz v. Pristasz, 201 Fed. 335, 119 C. C. A. 573; First Nat. Bank v. Fox, 40 Dist. Col. App. 430; Chicago, etc., Co. v. Butler, 139 Ga. 816, 78 S. E. 244; Bank of Bushnell v. Buck, 161 Ia. 362, 142 N. W. 1004; Smith & Nixon Co. v. Morgan, 152 Ky. 430, 153 S. W. 749; Fletcher v. Willard, 14 Pick. 464; J. B. Millet Co. v. Andrews, 175 Mich. 350, 141 N. W. 578; Tiffany v. Times Square Auto Co., 168 Mo. App. 729, 154 S. W. 865; J. I. Case, etc., Co. v. McKay, 161 N. C. 584, 77 S. E. 848; American Trust Co. v. Chitty, 36 Okl. 479, 129 Pac. 51; Kinnear & Gagar Mfg. Co. v. Miner, 88 Vt. 324, 92 Atl. 459. 83 Collins v. Blantern, 2 Wils. 341; Roe v. Kiser, 62 Ark. 92, 34 S. W. 534, 54 Am. St. Rep. 288; Waters v. Pearson, 39 Dist. Col. App. 10; Smith v. David B. Crockett Co., 85 Conn. 282, 82 Atl. 569, 39 L. R. A. (N. S.) 1148; Friend v. Miller, 52 Kans. 139, 34 Pac. 397, 39 Am. St. Rep. 340; Sherman v. Wilder, 106 Mass. 537; Taylor v. Perkins, 171 Mo. App. 246, 157 S. W. 122; Hinton v. Mutual Reserve Fund Life Assoc., 135 N. C. 314, 47 S. E. 474, 65 L. R. A. 161, 102 Am. St. Rep. 545; Manufacturers', etc., Bureau v. Everwear Hosiery Co., 152 Wis. 73, 138 N. W. 624, 42 L. R. A. (N. S.) 847. 84 See cases of duress, passim, infra, §§ 1601 et seq. 85 Baker v. Paine, 1 Ves. 456; Jersey Farm Co. v. Atlantic Realty Co., 164 Cal. 412, 129 Pac. 593; Gray v. Merchants' Insurance Co., 113 Ill. App. 537; Maffet v. Schaar, 89 Kan. 403, 131 Pac. 589; Somerville v. Coppage, 101 Md. 519, 61 Atl. 318; Goode v. Riley, 153 Mass. 585, 28 N. E. 228; Palmer v. Lowder, 167 N. C. 331, 83 S. E. 464. 86 Farrington v. McNeill, 174 N. C. 420, 93 S. E. 957. See cases of rescission for breach of contract, passim, infra, §§ 1455 et seq. 87 Davis v. Jones, 17 C. B. 625; Wallis v. Littell, 11 C. B. (N. S.) 369; Lindley v. Lacey, 17 C. B. (N. S.) 578; Tug River Coal Co. v. Brigel, 86 Fed. 818, 30 C. C. A. 415; American Sales Book Co. v. Whitaker, 100 Ark. 360, 140 S. W. 132, 37 L. R. A. (N. S.) 91; Cochran v. Shull, 115 Ark. 226, 170 S. W. 997; Verzan v. McGregor, 23 Cal. 339; Hurlburt v. Dusenbery, 26 Colo. 240, 57 Pac. 860; Printup v. Mitchell, 17 Ga. 558, 63 Am. Dec. 258; Robinson v. Nessel, 86 Ill. App. 212; Converse v. Independent Breweries Co., 199 Ill. App. 137; Uhl v. Moorhous, 137 Ind. 445, 37 N. E. 366; Stroupe v. Hewitt, 90 Kan. 200, 133 Pac. 562; Southern St. Ry. Advertising Co. v. Metropole Shoe Mfg. Co., 91 Md. 61, 46 Atl. 513; Elastic Tip Co. v. Graham, 185 Mass. 597, 71 N. E. 117; Church v. Case, 110 Mich. 621, 68 N. W. 424; Ada Dairy Assoc. v. Mears, 123 Mich. 470, 82 N. W. 258; Barrett v. Davis, 104 Mo. 549, 16 S. W. 377; Samuel Chute Co. v. Latta, 524, 103 N. W. 872; Kinnear & Gager Mfg. Co. v. Miner, 88 Vt. 324, 92 Atl. 459. dition precedent to its effectiveness, evidence has been admitted to show that another condition was orally agreed upon." Where, however, a sealed instrument is delivered to the grantee or obligee no parol condition deferring its effect can be shown in most jurisdictions,89 and this principle has occasionally been extended to unsealed written contracts.90 Even though an instrument is under seal, lack of the intent necessary to constitute delivery may be shown.91 Whether a written contract is sealed or unsealed, it cannot be shown that under a parol contemporaneous agreement a written contract, once effective, was to be terminated by a condition subsequent or at a time not stated in the writing; 92 and on the other hand where the contract states that it is.not to be effective until a certain contingency, a contemporaneous oral agreement that it should take effect immediately is inadmissible.93 "Parol evidence is competent to show that a written contract, not under seal, apparently made between the parties named 123 Minn. 69, 142 N. W. 1048; Bowser v. Fountain, 128 Minn. 198, 150 N. W. 795, L. R. A. 1916 B. 1036; Dodd v. Kemnitz, 74 Neb. 634, 104 N. W. 1069; Musser v. Musser, 92 Neb. 387, 138 N. W. 599; Oak Ridge Co. v. Toole, 82 N. J. Eq. 541, 88 Atl. 827; Blackstad Mercantile Co. v. Parker, 163 N. C. 275, 79 S. E. 606; First Nat. Bank v. Kelly, 30 N. Dak. 84, 152 N. W. 125, Ann. Cas. 1917 D. 1044; Gamble v. Riley, 39 Okl. 363, 135 Pac. 390; Mitchell v. Allen, 69 Tex. 70, 6 S. W. 745; Blair v. Security Bank, 103 Va. 762, 50 S. E. 262; Seattle v. L. H. Griffith Co., 28 Wash. 605, 68 Pac. 1036; O'Connor v. Lighthizer, 34 Wash. 152, 75 Pac. 643; Gilman v. Gross, 97 Wis. 224, 72 N. W. 885; Golden v. Meier, 129 Wis. 14, 107 N. W. 27, 116 Am. St. Rep. 935. Cf. Housekeeper Pub. Co. v. Swift, 97 Fed. 290, 38 C. C. A. 187; Findley v. Means, 71 Ark. 289, 73 S. W. 101; Newman v. Baker, 10 Dis. Col. App. 187; Ryan v. Cooke, 172 Ill. 302, 50 N. E. 213; Stewart v. Gardner, 152 Ky. 120, 153 S. W. 3; Miller v. Smith, 140 Mich. 88 Golden v. Meier, 129 Wis. 14, 107 N. W. 27, 116 Am. St. Rep. 935. But see United Engineering Co. v. Broadnax, 136 Fed. 351, 69 C. C. A. 172. 89 See supra, § 212. 90 Findley v. Means, 71 Ark. 289, 73 S. W. 101; Ryan v. Cooke, 172 Ill. 302, 50 N. E. 213. 91 Diebold Safe & Lock Co. v. Morse, 226 Mass. 342, 115 N. E. 431. 92 Begley v. Combs, 27 Ky. L. Rep. 93 Chamberlain v. Prudential Ins. Co., 109 Wis. 4, 85 N. W. 128, 83 Am. St. Rep. 851. |