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attached, oral evidence of this was held admissible in an action on this latter agreement. White v. Parkin, 12 East, 578. Where there was an oral agreement by the landlord to pay 201. towards repairs in consideration that plaintiff would become tenant, and plaintiff accepted a lease, and did the repairs, which defendant, the landlord, then promised to repay; held, that plaintiff could recover on an account stated, although the lease itself contained no such agreement. Seago v. Deane, 4 Bing. 459. So where a tenant executed a lease, which reserved the right of shooting to the lessor, on an oral promise by the latter that he would keep down the game: held, that the tenant could sue the lessor for breach of this promise. Morgan v. Griffith, L. R., 6 Ex. 70; Erskine v. Adeane, L. R., 8 Ch. 756. The decision in Mann v. Nunn, 43 L. J., C. P. 241, is to the like effect; it, was, however, doubted by Blackburn, J., in Angell v. Duke, 32 L. T., N. S. 320, E. T. 1875, Q. B. So evidence may be given of a contract made by a lessor with the lessee on the occasion of a lease of a house, as to the user of the adjacent houses of the lessor. Martin v. Spicer, 34 Ch. D. 1, C. A., affirmed in D. P. on other grounds, 14 Ap. Ca. 12. On the sale of land by auction, evidence was admitted of an oral statement by the auctioneer that there was a certain right of way to the land. Brett v. Clowser, 5 C. P. D. 376. Where A. orally agreed with a railway company that they should carry his cattle to K. station, and at the same time signed, without noticing its contents, a consignment note for the carriage of the cattle to an intermediate station, E.; it was held that the oral agreement was admissible in evidence as not contradicting, but being supplemental to, the written contract. Malpas v. L. & S. W. Ry. Co., L. R., 1 C. P. 336. Where the plaintiff agreed in writing to purchase certain furniture of the defendant, and by that agreement the defendant was authorized to settle an action of C. v. L., it was held that, in an action for not settling the ac of C.v. L., evidence was admissible of a distinct oral agreement to settle that action, made immediately before the written agreement. Lindley v. Lacey, 17 C. B., N. S. 578; 31 L. J., C. P. 7. These cases are plainly not exceptions to the general rule.
Nor is it an exception to this general rule that it does not extend to the exclusion of all the legal incidents which by the general law merchant, or common law, attach to certain instruments. Thus, the days of grace allowed to the parties to bills; the necessity of notice of dishonour, &c., are not specified on the bill, so of implied warranties on policies, &c. In such cases no evidence is admissible; for the court will take notice of all legal incidents. It is otherwise in regard to particular usages or local customs, which will be mentioned hereafter. Vide post, p. 22,
Oral evidence, when admissible to prove a consideration, or to vary the date, or description, &c.] The cases as to proof of consideration stand somewhat apart, and it would be dangerous to draw any inference from them with respect to the general law upon the subject under discussion. It is constantly the practice to show that no consideration has been given for a bill or note, although the instrument bears on its face the words “value received,” which clearly import a consideration for the promise contained in the instrument. Upon a contract under seal it is not, as in a contract not under seal, generally necessary to prove that there was any consideration, or the nature of it. But if the consideration come in question at all, it seems generally to have been permitted to inquire into it, notwithstanding any averment in the deed. Thus where the considerations mentioned in a deed were 10,0001., and natural love and affection, an issue was directed to inquire whether natural love and affection formed any part of the consideration. Filmer v. Gott, 4 Bro. P. C. 230. So a deed operating under the Statute of Uses, and reciting no consideration, may be supported by showing that a pecuniary one in fact passed. Mildmay's case, 1 Rep. 176. So a deed which recites only a pecuniary consideration may be shown to have been also founded on the consideration of marriage. Id.; Villers v. Beamont, Dyer, 146 a; Tull v. Parlett, M. & M. 472; and Clifford v. Turrill, 1 Y. & C. C. C. 138 ; 14 L. J., Ch. 390; S. C., on appeal, Id. 396. So evidence is admissible to show that the consideration stated in a bill of sale is not the true consideration, and that it is, therefore, as against trustees in bankruptcy and execution creditors, void under the Bills of Sale Act, 1878, s. 8. Ex parte Carter, 12 Ch. D. 908. The same principle applies to the Bills of Sale Act, 1882, s. 9 and schedule: see Cochrane v. Moore, 25 Q. B. D. 57, 73, C. A. A guarantee purported to be“ in consideration of your having advanced this day, &c.; oral evidence was admitted to show that the advance was contemporaneous with the guarantee, and was therefore a good consideration. Goldshede v. Swan, I Exch. 134. See also the following cases in which words of guarantee, founded on a consideration ambiguously expressed, so as to import either a past or future credit, were explained by extrinsic evidence that the credit was in fact a future or continuing credit; or that the consideration and guarantee were simultaneous. Edwards V. Jevons, 8 C. B. 436; Colbourn v. Dawson, 10 C. B. 765; 20 L. J., C. P. 154 ; Bainbridge v. Wade, 16 Q. B. 89; 20 L. J., Q. B. 7; Heffield v. Meadows, L. R., 4 0. P. 595; Laurie v. Scholefield, Id., 622. See Morrell v. Cowan, 7 Ch. D. 151.
A deed takes effect from the delivery, and not from the date ; therefore oral evidence was allowed to show that a lease dated on Lady Day, 1783, and purporting to commence on Lady Day last past, was in fact executed after the date, and that the term therefore commenced on Lady Day, 1783, and not 1782. Steele v. Mart, 4 B. & C. 272. In such case there is no real contradiction. The same consideration will also explain the ground on which oral proof was permitted to be given by the defendant that the plaintiff had made certain admissions on his examination before commissioners of bankruptcy, although the written examination produced contained no such admissions. Rowland v. Ashby, Ry. & M. 231. So, although the written examination taken by a magistrate on a criminal charge is the best evidence of such examination, yet any additional statements made by the examined, and not reduced to writing, may be proved by oral evidence. Venafra v. Johnson, 1 M. & Rob. 316.
Although no oral evidence can be used to add to or detract from the description in a deed, or to alter it in any respect, yet such evidence is always admissible to show the condition of every part of the property, and all other circumstances necessary to place the court, when it construes an instrument, in the position of the parties to it, so as to enable it to judge of the meaning of the instrument. Baird v. Fortune, 4 Macq. 127, 149, per Ld. Wensleydale; Mugee v. Lavell, L. R., 9 C. P. 107, 112; Devonshire, Duke of v. Pattinson, 20 Q. B. D. 263, C. A.; Roe v. Siddons, 22 Q. B. D. 224, C. A. See also Inglis v. Buttery, 3 Ap. Ca. 532, D. P. The same rule applies in the case of a will, vide post, p. 31; and see Way v. Hearn, 13 C. B., N. S. 292 ; 32 L. J., C. P. 31; Newell v. Radford, L. R., 3 C. P. 52; and Lewis v. Gt. IV. Ry. Co., 3 Q. B. D. 195, C. A. See, however, Stanton v. Richardson, L. R., 7 C. P. 428, 431, per Brett, J.
Mere words of description in a deed of conveyance, not operating by way of estoppel, may be contradicted by oral evidence; thus the lessee of land, described as “ meadow," may prove it to have been arable in an action by the lessor for ploughing it up; Skipwith v. Green, Stra. 610; or he may show that land described as containing 500 acres does not in fact contain so many; S. C. as reported Bac. Ab. Pleas I. 11; or contains many more. Jack y. M Intyre, 12 Cl. & Fin. 151 ; Manning v. Fitzgerald, 29 L. J., Ex. 24.
In a settlement case, where the deed of conveyance stated the consideration of the purchase to be 281., oral evidence was admitted to show that the consideration was in fact 301.; R. v. Scammonden, 3 T. R. 474 ; and that money, stated in a deed of apprenticeship to have been paid by J. M., was in fact parish money. R. V. Llangunnor, 2 B. & Ad. 616. In these cases, however, the oral proof was admissible, not on the ground of its consistency with the writing, but because the recital in the deed was res inter alios, which the parishes were not estopped from correcting even by testimony inconsistent with the writing: So a parish may show a settlement by renting a tenement in parish B., though the lease describes it as in parish A. R. v. Wickham, 2 Ad. & E. 517.
Oral evidence admissible to prove fraud, illegality, or error.] Where fraud is imputed, any consideration or fact, however contrary to the averment of a deed, may be proved to show the fraudulent nature of the transaction; B. N. P. 173; Paxton v. Popham, 9 East, 421; for fraud is a matter extrinsic and collateral, which vitiates all transactions, even the most solemn. Thus, in order to set aside a will, oral evidence may be given of what passed at the signing, and what the testator said, to show that his signature was obtained by fraud. Doe d. Small v. Allen, 8 T. R. 147; and vide post, p. 55. And, in general, matter which in law avoids an instrument, whether it be fraud, forgery, duress, illegality, &c., may be proved orally, however contradictory to its tenor, provided the pleading3 be adapted to such evidence. See Doe d. Chandler v. Ford, 3 Ad. & E. 649; and 1 Smith's L. Cases, Collins v. Blantern, in notis.
Evidence is sometimes admissible to show a mistake in a writing; thus a contract, usurious on the face of it, might have been explained by showing it was made so by a clerical error. Anon., Freem. 253; Booth v. Cooke, Id. 264. So a house, misdescribed in a lease as No. 38, may be shown to be in truth No. 35. Hutchins v. Scott, 2 M. & W. 816, per Curiam. See also Hutchin v. Groom, 5 C. B. 515.. But where a verdict and judgment were given in evidence to prove a public way, the court will not admit proof that the verdict was entered erroneously by the mistake of the officer. Reed v. Jackson, 1 East, 355. The record in the first action should have been amended by leave of the court. But where a Nisi Prius record was put in evidence to prove damages in a suit against the plaintiff, and the postea did not show on which of two different counts the damages were in fact given, ora evidence was admitted to prove that they were recovered, substantially, on one of the counts only, this being no contradiction of the record, the verdict and damages having been entered generally. Preston v. Peeke, E. B. & E. 336; 27 L. J., Q. B. 424. Proof of a material and substantial error in the frame of a subsisting contract cannot in general be set up in an action upon it; Perez v. Oleaga, 11 Exch. 306; 25 L. J., Ex. 65; Solvency Mutual Guarantee Co. v. Freeman, 7 H. & N. 17; 31 L. J., Ex. 197; except by way of a claim for rectification under the J. Act, 1873, s. 24 (1-3), on the ground of common mistake. But there is no occasion to reform the contract where an agent is wrongly described as principal; Wake v. Harrop, 6 H. & N. 768 ; 30 L. J., Ex. 273; 1 H. & C. 202; 31 L. J., Ex. 451, Ex. Ch.; or where it has been completely executed according to the intention of the parties; Steele v. Haddock, 10 Exch. 643; 24 L. J., Ex. 78; Luce v. Izod, 1 H. & N. 24); 25 L. J., Ex. 307; Vorley v. Barrett, 1 C. B., N. S. 225; 26 L. J., C. P. 1; or where the full performance has become impracticable by reason of the default of the plaintiff. Borrowman v. Rossel, 16 C. B., N. S. 58; 33 L. J., C. P. 111. And in such cases the mistake will afford a defence without rectification. As to when rectification will be ordered, see Story, Eq. Jur. SS 152 et seq.
Oral evidence, when admissible to explain mercantile contracts and words of art.) Where the parties have contracted in writing, in many instances oral evidence is admitted to prove an usage affecting the contract, on the ground that, where such usage exists, the parties must be taken to have made their contract subject to its operation. And such evidence is sometimes admitted as explanatory of the language of the writing, and sometimes as superadding a tacitly implied incident. Thus, oral evidence is always admitted to show the sense in which, according to the custom of merchants, a mercantile contract is to be understood. See 1 Smith's L. Cases, Wigglesworth v. Dallison, in notis. In such a case it is unobjectionable to ask a witness whether there is any generally understood meaning of certain words among persons engaged in the particular trade or commerce under investigation. Robertson y. Jackson, 2 C. B. 412. And such a question must be put to the witness before he is asked what he understands by the written contract to which it is meant to apply the usage. Curtis v. Peek, 13 W. R. 230, M. T. 1861, Ex. Ch.
Where a ship was warranted to depart with convoy, evidence of usage was admitted to show that this meant convoy from the usual place of rendezvous. Lethulier's case, 2 Salk. 443. So, to explain the meaning of
days ” in a bill of lading; Cochran v. Retberg, 3 Esp. 121 ; to show that the Gulf of Finland is considered by mariners to be within the Baltic; Uhde v. Walters, 3 Camp. 16; or the Mauritius to be an East Indian island. Robertson v. Money, Ry. & M. 75. So evidence was admitted to explain the term “privilege " in a contract between shipowner and captain; Birch v. Depeyster, 4 Camp. 385; and to show the received meaning of “mess pork of S. & Co.”. Powell v. Horton, 2 N. C. 668. Where the captain of a ship agreed to convey a boat of certain dimensions for the plaintiff, evidence was admitted on behalf of the captain that the practice was to remove the deck of such boats when put on board. Haynes v. Holliday, 7 Bing. 587. Apparent variances in bought and sold notes may be reconciled by the evidence of brokers. Bold v. Rayner, 1 M. & W. 343; Kempson v. Boyle, 3 H. & C. 763; 34 L. J., Ex. 191, cited sub tit. Action for not accepting Goods, post, p. 514. Where it was represented to an insurer that the ship would sail from St. Domingo in October, he was permitted to show in his defence that this was understood among merchants to mean between the 25th and the end of October, whereas the ship sailed on the 11th. Chaurand v. Angerstein, Peake, 43. Oral evidence may be given to explain the meaning of the word level in a mining lease ; Clayton v. Gregson, 5 Ad. & E. 302; and of the words “ across the country” in a wager on a race. Evans v. Pratt, 3 M. & Gr. 759. In a contract for the purchase of “1,170 bales of gambier,” it was held that it might be shown that by the usage of that trade a “bale” meant a compressed package, weighing about two cwt. Gorrissen v. Perrin, 2 C. B., N. S. 681; 27 L. J., C. P. 29. See also Taylor v. Briggs, 2 C. & P. 525. So where instructions were given by a principal residing out of England to his factor to sell corn, a custom in the London corn market to sell in the factor's own name is admissible to explain the instructions. Johnston v. Usborne, 11 Ad. & E. 549. On a sale of goods by a manufacturer who is not a dealer, evidence is admissible of a custom in the particular trade to deliver goods of another manufacturer. Johnson V. Raylton, 7 Q. B. D. 438, C. A. A sale of tobacco may be explained to be a sale by sample, by the general usage of the trade, although the bought and sold notes are silent as to sample. Syers v. Jonas, 2 Exch. 111. So an engagement by a public singer for three years, may be explained to mean three theatrical seasons. Grant v. Maddox, 15 M. & W. 737. In an action by a shipowner on a contract to pay freight at a certain rate per lb., defendant was allowed to show a custom of the trade at a particular port to allow three months' discount on freights on goods coming from certain ports. Brown v. Byrne, 3 E. & B. 703; 23 L. J., Q. B. 313. “After arrival" at a named island may be explained to mean after arrival at a place at sea some miles off the usual port, if it be a place of ordinary anchorage; and this is a question for the jury. Lindsay v. Janson, 4 H. & N. 699; 28 L. J., Ex. 315. Where by a charterparty the shipowner agreed to consign the ship to A. B., at Calcutta, on the usual and customary terms,” a custom may be proved for consignee to procure the homeward freight on commission; Robertson v. Wait, 8 Exch. 299; 22 L. J., Ex. 209; but where the charter provides that the consignment is to be “ free of commission,” and says nothing of usual terms, the charterer cannot set up such custom by oral evidence, in an action against the shipowner for not allowing the consignee to procure the homeward freight. Phillipps v. Briard, 1 H. & N. 21 ; 25 L. J., Ex. 233. * A full and complete cargo of sugar” may be explained to mean full and complete according to the customary mode of packing and loading sugar at the port where it is loaded. Cuthbert v. Cumming, 11 Esch. 405; 24 L. J. Èx. 310, Ex. Ch. So “regular turns of loading,” or “in turns to deliver,” may be explained by local usage. Leidemann v. Schultz, 14 C. B. 318 ; 23 L. J., O. P. 17; Robertson v. Jackson, 2 C. B. 412. So the custom of the port as to when lay days commence; Norden Steam Co. v. Dempsey, 1 C. P. D. 654; or as to how running days are to be calculated; Nielsen v. Wait, 16 Q. B. D. 67, C. A. “Fifty tons best palm oil, with a fair allowance for inferior oil, if any,” may be explained to be satisfied by the delivery of 50 tons, of which the greater part is inferior. Lucas v. Bristow, E. B. & E. 907; 27 L. J., Q. B. 364. A contract in writing to do stone and brickwork at the rate of “38. per superficial yard of work 9 inches thick, and finding, all materials, deducting all lights," was held not to exclude a custom in the trade to reduce all brickwork for the purpose of measurement to 9 inches in thickness. Symonds v. Floyd, 6 C. B., N. S. 691. So a contract to do certain work and to deliver “ a weekly account of work done” was held not inconsistent with a usage in the building trade, that this clause related not to all the work contracted to be done, but to that part only which was of a particular kind. Myers v. Sarl, 3 E. & E. 306; 30 L. J., Q. B. 9. Where there was a written contract for the sale of shares at a certain price, “for payment half in two, half in four months,” it was held, that evidence was admissible that the seller was by usage not bound to deliver the shares until the appointed time for payment, unless the buyer chose to pay for them earlier. Field v. Lelean, 6 H. & N. 627; 30 L. J., Ex. 168, Ex. Ch. See the case of Spartali v. Benecke, post, p. 25, and observations thereon. The usage of a particular port, that the underwriters are not liable for general average in respect of the jettison of timber stowed on the deck, can be annexed to a policy making the underwriter liable for general average without restriction.
Miller v. Tetherington, 6 H. & N. 278; 30 L. J., Ex. 217; 7 H. & N. 954; 31 L. J., Ex. 363, Ex. Ch. By a bill of lading of wool freight was to be paid " at the rate of 80s. per ton of 20 cwt. gross weight, tallow and other goods, grain or seed, in proportion as per London Baltic printed rates;" evidence was admitted to show that by the usage of the trade this meant that 808.