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missions might be evidence of its contents. Ante, pp. 2, 3. Nor can the subsequent correspondence or conduct of the parties be submitted to a jury as evidence by which “alone" to explain the meaning of a contract. Simpson v. Margitson, 11 Q. B. 23; Doe d. Morgan v. Powell, 7 M. & Gr. 980.
Oral evidence admissible to discharge written agreements.] A deed cannot be revoked or discharged by parol, i. e., word of mouth, or writing not under seal; Rutland's (Countess of) Case, 5 Rep. 26 a ; West v. Blakeway, 2 M. & Gr. 729, 751 et seq. But an executory agreement in writing not under seal (other than a bill of exchange or promissory note, vide infra) may, before breach, be discharged by a subsequent oral agreement. B. x. P. 152. After breach, it cannot be discharged except by release under seal, or accord and satisfaction, Id.; Willoughby v. Backhouse, 2 B. & C. $24; or by proof of a valid agreement substituting a new cause of action in place of the old, for an invalid agreement will not discharge the former
Case v. Barber, T. Raym. 450; Noble v. Ward, L. R., 1 Ex. 117; L. R., 2 Ex. 135, Ex. Ch. In these cases, wherever the subsequent oral agreement has had the effect, in point of law, of varying or discharging the original one, it is (apart from statute, as to which vide infra) admissible in evidence. Thus, in an action for not accepting goods, where it appeared that the agreement in writing was to deliver at a fixed time, the plaintiff may show a subsequent extension of the time by oral agreement. Cuff v. Penn, 1 M. & S. 21. Where an auctioneer sold for 67. an article described as silver in a printed catalogue, but which he publicly stated at the sale to be only plated ; held, that this was an oral sale of a plated article. Eden v. Blake, 13 M. & W. 614.
A distinction, however, is to be observed on this head between simple contracts in writing under the Stat. of Frauds, and contracts at common law. In the former case, an oral contract will not be admitted to show a subsequent variation in the written contract; as where several lots of land were bought together, it cannot be shown that the purchaser has, orally, waived the contract as to one lot to which the vendor could not make title; Goss v. Nugent, Ld., 5 B. & Ad. 58 ; or, that the parties varied the day of completion. Stowell y. Robinson, 3 N. C. 928; Marshall v. Lynn, 6 N. & W. 109; Stead v. Dawber, 10 Ad. & E. 57; Noble v. Ward, supra. See also Sanderson v. Graves, L. R., 10 Ex. 234. But it would have been otherwise if the contract had not been subject to the control of a statute ; for where such a contract has been reduced into writing, it is competent to the parties, at any time before the breach of it, by a new contract not in writing, either altogether to waive, dissolve or alter the former agreement, or to qualify the terms of it, and thus to make a new contract to be proved partly by the written agreement, and partly by the subsequent oral terms engrafted upon it. Goss v. Nugent, L.., 5 B. & Ad. 65,
per A contract within the Stat. of Frauds can, it seems, be wholly discharged orally. Goman v. Salisbury, 1 Vern. 240; Gos8 v. Nugent, Ld., 5 B. & Ad. 66, per cur. See, however, Harvey v. Grabham, 5 Ad. & E. 61, 74, per cur. But a contract in writing, good under the Stat. of Frauds, is not rescinded by a subsequent invalid oral contract intended to be substituted for the former one. Noble v. Ward, supra. By the Bills of Exchange Act, 1882, ss. 62, 89, the renunciation by the holder of a bill of exchange or promissory note of his rights against the acceptor must be in writing unless the bill or note is delivered up to the acceptor.
Oral evidence admissible to explain latent ambiguity.] Where an am
biguity, not apparent on the face of a written instrument, is raised by the introduction of oral evidence, the same description of evidence is admitted to explain it; for example, where a testator devises his estates of Blackacre, and has two estates called Blackacre, evidence may be admitted to show which of the Blackacres was meant; or if one devises to his son John Thomas, and he has two sons of the name of John Thomas, evidence may be admitted to show which the testator intended. Per Gibbs, C. J., Doë v. Chichester, 4 Dow, 93; Doe d. Morgan v. Morgan, 1 Cr. & M. 235. And where the description of the devisee, or thing devised, is true in part, but not true in every particular, oral evidence is admissible to show the person or thing intended, provided there be enough on the face of the will to justify the application of the evidence; per cur. in Miller v. Travers, 8 Bing. 248-9; Charter v. Charter, L. R., 2 Ø. & M. 315 ; L. R., 7 H. L. 364. Thus, an error in a christian or surname may be proved. S. CC., and see Careless v. Careless, 1 Meriv. 384. Where the grantor has no lands agreeing exactly with the description in the deed, the lands intended may be shown by the contract of sale, or by letters written between the parties and their agents. Beaumont v. Field, 1 B. & A. 247. Where a farmer contracted in writing (as required by the Stat. of Frauds) to sell “his wool" at a certain price, evidence of a previous conversation between him and the buyer was held admissible to prove that his “wool” meant wool in his possession bought by him of other farmers as well as wool of his own growth, but not admissible to prove that only a limited quantity of such wool was intended to be bought. Macdonald v. Longbottom, 1 E. & E. 977; 28 L. J., Q. B. 293; 1 E. & E. 987; 29 L. J., Q. B. 256, Ex. Ch. See also Buxton v. Rust, L. R., 7 Ex. 280, 281, Ex. Ch., per Willes, J. So in construing a written contract of service under which A. was “ to enter into the employ” of B., or A. was “ to give the whole of his services to B.," oral evidence is admissible to show in what capacity A. was to serve B. Mumford v. Gething, 7 C. B., N. S. 305; 29 L. J., C. P. 105; Price v. Mount, 11 C. B., N. S. 508; even although the Statute of Frauds requires a written contract. S. C. See also Chadwick v. Burnley, 12 W. R. 1077; T. T. 1864, Q. B. Where by a written agreement purporting to be between a company and the plaintiff, three of the directors of the company, who signed the same, agreed, in consideration of the advance of 5001, by the plaintiff to the company, to repay the same to the plaintiff, oral evidence was held admissible to prove that it was binding on the directors personally. McCollin v. Gilpin, 6 Q. B. D. 516, C. A. Where C. D. signed a voting paper, which had been filled up in the body of it with the name of A. B. as the person giving it, oral evidence was admitted to explain the mistake. Summers v. Moorhouse, 13 Q. B. D. 388.
Where a devise was to S. H., second son of T. H., but in fact S. H. was the third son, evidence of the state of the testator's family, and of other circumstances, was admitted to show whether he had mistaken the name or the description. Doe d. Le Chevalier v. Huthwaite, 3 B. & A. 632. There are also other authorities for admitting evidence that the testator was accustomed to misname a person, and thus to show who was meant by him, although there be a person in existence whose name corresponds with that in the will. Blundell v. Gladstone, 11 Sim. 467; 1 H. L. C. 778; Lee v. Pain, 4 Hare, 251. So by “my nephew, J. G.,” testator's wife's nephew may be shown to be meant, though the testator also had a nephew J. G. Grant v. Grant, L. R., 2 P. & M. 8; Id. v. Id., L. R., 5 C. P. 380; Id. 727, Ex. Ch.; Sherratt v. Mountford, post, p. 31. See Wells v. Wells, L. R., 18 Eq. 504, cor. Jessel, M. R. contra, and Cloak v. Hammond, 34 Ch. D. 255, C. A. Where the devise was to John A., grandson of T. A., with a charge in favour of each of the brothers and sisters” of the said John A., and it appeared that there were two grandsons of T. A., both named J. A.; held, that oral declarations of the testator were admissible to show which was meant, although it also appeared that only one of the grandsons had several brothers and sisters. Doe d. Allen v. Allen, 12 Ad. & E. 451. In the case of a devise to testator's nie remainder to her three daughters, M., and A., the niece at the time of making the will had two legitimate daughters, M. and A., and one illegitimate, E.: held that the claim of the latter might be rebutted by showing that the niece formerly had a legitimate daughter, E., and that the testator knew nothing of the death of the legitimate, or the birth of the illegitimate, E. Doe d. Thomas v. Beynon, Id. 431. See also Hill v. Crook, infra.
Evidence of the testator's declaration of intention is only admissible where the language is clear and unambiguous, but the ambiguity arises from some of the circumstances admitted in proof, as to which of two or more persons the testator intended to express. Doe d. Hiscocks v. Hiscocks, 5 M. & W. 363, 369; Charter v. Charter, L. R., 7 H. L. 364. Where a devise was to John H., the eldest son of John H., and it appeared that John H., the father, had an eldest son name Simon, and a son by a second marriage named John; held, that the declarations of the testator were not admissible to show which was meant. Doe d. Hiscocks v. Hiscocks, supra. Where the devise was to the testator's “nephews," and evidence had been adduced to show that he had no nephews, but that his wife's nephews were meant, it was held that evidence that these could not have been intended by the testator was not admissible, without also showing some other class who were intended to take. Sherratt v. Mountford, L. R., 8 Ch. 928.
A devise to “my dear wife C.” cannot be defeated by showing that the devisor had a lawful wife, M., alive when he went through a form of marriage with C. Doe d. Gains v. Rouse, 5 C. B. 422. But where B. makes a devise to his wife A., the devise may be defeated by showing that A. fraudulently concealed from B. that she had a husband living when she went through a form of marriage with B. Wilkinson v. Jonghin, L. R., 2 Eq. 319, following Kennell v. Abbott, 4 Ves. 802. Where a fine was levied of 12 messuages in Chelsea, and it appeared that the cognisor had more than 12 messuages in Chelsea, oral evidence was admitted to show which messuages in particular the cognisor intended to pass. Doe d. Bulkeley v. Wilford, Ry. & M. 88; S. C., 8 D. & Ry. 549.
It may be laid down as a general rule, that all facts relating to the subject of the devise, such as that it was not in the possession of the testator, the mode of acquiring it, the local situation, and the distribution of the property, are admissible to aid in ascertaining what is meant by the words used in a will. Parke, J., in Doe d. Templeman v. Martin, 4 B. & Ad. 785; Webber v. Stanley, 16 C. B., N. S. 698, 751, 752; 33 L. J., C. P. 217, 220, per cur.; Wigram on Interp. Wills, 51. Even the value of the property and the charges upon it in the will may be shown in explanation of it. Semb.
Nightingall v. Smith, 1 Exch. 879. See also Allgood v. Blake, L. R., 8 Ex. 160, 162, Ex. Ch. In construing a will the Court should place itself as fully as possible in the situation of the testator, and guide its construction of his intention in some degree by the light of the knowledge thus acquired. Hill v. Crook, L. R., 6 H. L. 265, 277; Charter v. Charter, L. R., 7 H. L. 364, per Lds. Cairns, C., and Selborne; Cloak v. Hammond, 34 Ch. D. 255, C. A. See further, ante, p. 20.
Where a subject-matter exists which satisfies the terms of the will, and to which they are perfectly applicable, there is no latent ambiguity, and no evidence can be admitted for the purpose of applying the terms to a different object. Thus, where a testator devised his “estate at Ashton," it was held that oral evidence was inadmissible to show that he was accustomed to call all his maternal estate “his Ashton estate,” there being an estate in the parish of Ashton which was sufficient to satisfy the devise. Doe d. Chichester v. Oxenden, 3 Taunt. 147; S. C., 4 Dow, 65; Webber v. Stanley, supra; Pedley v. Dodds, L. R., 2 Eq. 819. See also Carruthers v. Sheddon, 6 Taunt. 14. But a devise of lands “in parish D.,” will pass lands of which part only is in D.; if it be shown by oral evidence that all was reputed to be in it. Anstee v. Nelms, 1 H. & N. 225; 26 L. J., Ex. 5; Whitfield v. Langdale, 1 Ch. D. 61. Where words have acquired a precise and technical meaning, no other meaning can be applied to them. Per Lord Kenyon, Lane v. Earl of Stanhope, 6 T. R. 352. In the case of a legacy to the testator's “heir,” it cannot be shown that a testator was in the habit of calling a person his heir who was not so. Mounsey v. Blamire, 4 Russ. 384. If a will names the devisee and it be shown orally that there are several to whom the name applies; yet this is not enough to let in oral evidence of intention, where it can be collected from the will itself who was intended. Doe d. Westlake v. Westlake, 4 B. & A. 57; Webber v. Corbett, L. R., 16 Eq. 515.
Where the ambiguity is not latent, or raised by extrinsic evidence, but patent or apparent on the face of the instrument, oral evidence is not admissible to explain such ambiguity; Thus, where a blank is left for the devisee's name in a will, oral evidence cannot be admitted to show whose name was intended to be inserted. Baylis v. Att.-Gen., 2 Atk. 239. Where the names of the devisees in a will of real property were all indicated only by single letters, a card kept by the testator separate from his will, containing a key” to the letters, and showing the person meant by each, was held inadmissible to explain it, though referred to in the will. Clayton v. Nugent, Ld., 13 M. & W. 200. But where a blank was left for the Christian name only, oral evidence was admitted to prove the individual intended. Price v. Page, 4 Ves. 680. But see Doe d. Gord v. Needs, 2 M. & W. 139. So in case of a devise to “Mrs. G.,” the Chancellor referred it to the Master to receive evidence to show the person intended, who found that the testator invariably called a Mrs. Gregg by the name of “Mrs. G.” Abbott v. Massie, 3 Ves. 148. Where a will mentioned George, the son of George Gord, and also George the son of John Gord, a bequest to “ George the son of Gord," was explained by proof of the declarations of the testator to mean George the son of George Gord. Doe d. Gord v. Needs, 2 M. & W. 129. In reply to the argument that this was a patent ambiguity, it was said that it could only appear ambiguous by showing aliundé the non-existence of a George the son of Gord, different from the other two Georges; and that the mention of another George in the same will had no other effect than extrinsic proof of the same fact would have had. If an agreement, unambiguous on the face of it, is shown by extrinsic evidence to have a different meaning from that which it imports, and the extrinsic facts are undisputed, the construction of it is for the judge, who ought not to leave it to the jury as a question of the intention of the parties. Semb. Hitchin v. Groom, 5 C. B. 515. Where it is doubtful on the face of a document whether it is testamentary or not, evidence of the intention of the deceased is admissible. Robertson v. Smith, L. R. 2 P. & M. 43; In re Slinn, 15 P. D. 157.
Where a blank is left in a written agreement which need not have been reduced into writing, and would have been equally binding if written or unwritten (as if the agreement be to deliver goods to the value of less than 101., id a blank be left for the quantity of goods to be delivered), in such a case it would seem that in an action for the non-performance of the contract, oral evidence may be admitted to supply the defect. 1 Phill. Ev. 521. An instrument so imperfect on the face of it is no perfect contract at all so as to exclude oral evidence. As to the effect of omissions in a contract within the Statute of Frauds, see Action for not accepting goods, post, pp. 510, 512. Where, in the entry of an appointment to a curacy in the bishop's register, a blank was left for the patron's name, it was held that this might be supplied by oral evidence. Meath, Bp. of v. Belfield, 1 Wils. 215. A demise offered in evidence was a printed blank form filled up and altered for use; held, that the court might look at the parts struck out in order to ascertain the intent of the parties in what remained. Strickland v. Maxwell, 2 Cr. & M. 539.
Oral evidence admissible on questions of parcel or no parcel.] Where the question is “parcel or no parcel,” oral evidence is admissible to explain a writing. Thus, where a testator devised “all his farm called Trogues Farm,” it was held that it might be shown of what parcels the farm consisted. Goodtitle d. Rad ford v. Southern, 1 M. & S. 299. But where a deed professes to convey a farm as described on a schedule and map annexed, a field not included in the map or schedule, though always treated as part of the farm, will not pass. Barton v. Dawes, 10 C. B. 261 ; 19 L. J., C. P. 392. Where the testator devised two cottages, one described as being in the occupation of A., and the other of B.; and it appeared that the testator had two cottages which had been internally divided, so that part only of one was occupied by A., and part of the other occupied by B.; it was held (Erle, J., dissent.) that only the portions of the cottages so occupied passed by the devise, and oral evidence was not admissible to show that he meant the entire cottages to pass. Doe d. Hubbard v. Hubbard, 15 Q. B. 227; 20 L. J., Q. B. 61. Where a lease professed to demise premises and a yard, extrinsic evidence was admitted to rebut the presumption that a cellar under the yard was also intended to pass. Doe d. Freeland v. Burt, 1 T. R. 701. So in case of a written agreement to convey “all those brick-works in the possession of A. B.," oral evidence of what passed on making the agreement was admitted to show what brick-works were intended to pass. Paddock v. Fradley, 1 C. & J. 90. Although the question of parcel or no parcel is for the jury, the judge must tell the jury what is the proper construction of any documents necessary to be considered in the decision of that question. Lyle v. Richards, L. R., 1 H. L. 222. Conditions of sale, shown to a purchaser at the time of sale, are evidence against him of what was then reputed parcel of the premises conveyed to him by deed. Murly v. M Dermott, 8 Ad. & E. 138. But they will not narrow the language of the conveyance. Doe d. Norton v. Webster, 12 Ad. & E. 442. See also Glave v. Harding, 27 L. J., Ex. 286.
PRESUMPTIVE EVIDENCE. Presumptive evidence is usually so called in contradistinction to direct or positive proof, whether written or oral; though all moral proof is, in strictness, founded on probability and presumption. Thus, a fact attested by the direct evidence of an ocular witness can only be admitted to be true on the presumption that the witness neither deceives nor is deceived. Perhaps the principal distinction is, that what is usually called a presumption may be rebutted without necessarily impugning the testimony upon which it rests; but direct testimony cannot be im ched without attacking its credibility. Presumptive evidence is not, in its nature, secondary to direct evidence. Thus, payment of rent may be proved by the positive evidence of a person who saw it paid; yet it may also be proved by the