the memorandum and signature required by the statute of These classes of cases are those of auctioneers and frauds. brokers.) § 124. (Contracts, Sec. 92.) Compliance by delivery in acceptance in sales of personal property. (Note: See Sales, Chapter 40 post, for cases. This section heading is placed here to call attention to the fact that under the 17th Section, the statute of frauds is satisfied, that is, suit may be successfully maintained so far as the statute of frauds is concerned, although there is no writing, if there has been a delivery and acceptance of the goods, or a part of them.) § 125. (Contracts, Sec. 93.) Compliance by payment or part payment in case of sales of personal property. This section (Note: See Sales, Chapter 40 post, for cases. heading is placed here to call attention to the fact that under the 17th Section the statute of frauds is satisfied, that is, suit may be successfully maintained so far as the statute is concerned, although there is no writing, if there has been a payment or part payment.) § 126. (Contracts, Sec. 94.) Contracts for work and labor, not within the statute. (Note: See Sales, Chapter 40 post, for cases. This section heading is placed here to call attention at this time to the fact that if goods are specially made up to the order of a party, not being readily disposable on the market to others, the statute of frauds does not apply.) § 127. (Contracts, Sec. 95.) The statute of frauds and the uniform sales act. (Note: The Uniform Sales Act, adopted in many states and hereafter considered in Division D, reaffirms and re-enacts with modification, the 17th Section of the English Statute of Frauds. See Sales, Division D, post.) D. The Parol Evidence Rule. § 128. The parol evidence rule defined. § 129. Parol evidence rule permits contracts partly in writing and partly oral. § 130. Parol evidence rule permits proof of customs. § 131. Evidence not precluded by parol evidence rule. § 128. (Contracts, Sec. 96.) The parol rule defined. (Editor's Note: When a contract is reduced to writing whether because the law requires it, or merely because the parties desire it to be in that more permanent form, the law considers that it is in that writing that the expression and evidence of the contract is to be found, and therefore will not permit the introduction of oral or extrinsic evidence, whether of utterances prior to, or at the time of the writing, to add to, contradict or in any manner to change the written language. Otherwise the writing, instead of being a permanent expression of the contract, would be, at most, a prima facie evidence thereof, subject to mutilation by the oral testimony of the parties. If one puts his contract in written form it is deemed that such writing is his contract, that it was so intended, and that there it must be. found and not elsewhere. This is known as the parol evidence rule. For application of this rule see following cases.) Case 147. Seitz v. Brewers' Refrigerating Co., 141 U. S. 510. Facts: The Brewers' Refrigerating Machine Co. sued Seitz on a written contract by which it agreed to supply and put in operation in defendant's brewery, a No. 2 refrigerating machine, of its own construction, for a certain price to be paid on certain terms. Seitz defends on the ground, first, that there was an implied warranty that the machine would accomplish certain purposes; second, that, at any rate, there was a collateral oral warranty that the machine would accomplish those purposes. As to the first point the court decided that under the terms of the sale, defendant having gotten the very thing he bargained for, there was no implied warranty of fitness for any particular purpose; and further directed that the oral warranty, even if made, was not admissible in evidence because of the parol evidence rule. Point Involved: Whether if a contract of sale is in writing of an apparently complete form, the court can receive evidence that an oral warranty was made as a part of that contract. The position MR. CHIEF JUSTICE FULLER: 66* of the plaintiff in error is, in the first place, that the evidence on his behalf tended to show an agreement between himself and defendant in error, entered into prior to or contemporaneously with the written contract, independent of the latter and collateral to it, that the machine purchased should have a cerain capacity and should be capable of doing certain work, that the machine failed to come up to the requirements of such independent parol contract; that this evidence was competent; and that the case should therefore have been left to the jury. "Undoubtedly the existence of a separate oral agreement as to any matter on which a written contract is silent, and which is not inconsistent with its terms, may be proven by parol, if under the circumstances of the particular case it may properly be inferred that the parties did not intend the written paper to be a complete and final statement of the whole of the transaction between them. But such an agreement must not only be collateral, but must relate to a subject distinct from that to which the written contract applies; that is, it must not be so closely connected with the principal transaction as to form part and parcel of it. And when the writing itself upon its face is couched in such terms as import a complete legal obligation without any uncertainty as to the object or extent of the engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, were reduced to writing. Greenl. Ev. 275. "There is no pretense here of any fraud, accident or mistake. The written contract was in all respects unambiguous and definite. The machine which the company sold, and which Seitz bought, was a No. 2 size refrigerating machine, as constructed by the company, and such was the machine that was delivered, put up and operated by the brewery. A warranty or guaranty that the machine should reduce the temperature of the brewery to 40 degrees Fahrenheit, while in itself collateral to the sale, which would be complete without it, would be part of the description and essential to the identity of the thing sold; and to admit proof of such an engagement by parol would be to add another term to the writen contract, contrary to the settled and salutary rule of this subject.' (Note to Case 147: On a sale of personal property, there are certain implied warranties unless negatived by the writing. Thus, in the case above there would no doubt be an implied warranty of title in the seller, and an implied warranty of merchantability (no unusual, hidden defects of construction). Therefore had the defense been that the machinery was defective. the parol evidence rule would not have precluded the evidence, unless there was a written provision covering that point. Defendant's point, however, was that the machine, admittedly properly constructed should accomplish certain specific purposes in his plant. There was no implied warranty that it would for the reason that Seitz got the very machine he bargained for. It was none of the seller's business that it would not accomplish a particular object. The parol evidence rule would not keep out proof of the implied warranty of fitness for particular purpose, but the order by the buyer of a "known, described and definite`` article, is fulfilled by a delivery of the thing ordered, whether it fulfils the buyer's object or not, for by his order he has relied on his own judgment. Hence, Seitz was thrown back on the argument that there was an express warranty on that point. But here he was met by the parol evidence rule which excluded the evidence because it would add to a written contract seemingly intended to be complete.) Question 147: What was the suit about in this case? What defenses were made to the suit? Why did the court keep out the proof of an oral warranty? Was proof of an implied warranty admissible? Was there such an implied warranty in this case? Case 148. Professor John H. Wigmore, A Treatise on the System of Evidence in Trials at Common Law, Section 2425. "When parties negotiate at a distance by letters and telegrams, first an offer, then a declination, then a revision of the offer, then a halt upon an important term, afterwards an offer of its concession in return for the concession of some prior term now to be changed, and finally an acceptance of this concession, and thus an end of the negotiations,-where are the terms of this contract to be found? Obviously, in this congeries of letters and telegrams, as mutually modifying and complementing each other. The whole of the contract is not in any one document. Nor, on the other hand, does the whole of any one document (probably) represent a part of the contract, because some of its terms have been impaired and replaced by other documents in the series. Nor can it be said that there is a series of legal acts, each one independent, successively modifying the preceding ones; for each letter and telegram is merely tentative and preparatory, and there exists no legal act (ante 2401, 2404) until the final assent is given. That assent, when it comes, adopts and vivifies the entire mass, which until then was legally inchoate only. The process was not unlike the fall of cards in the play of a trick at whist; the total effect cannot be determined till the last card has fallen, and no one card exhibits in itself the effect of the trick; yet, when all are played, the second card may prove to be the decisive factor and may remain unimpaired by any later play. On the other hand, if instead of leaving the net effect of the negotiations to be gleaned from the mass of writings, a single document is finally drawn up to replace them and to embody their net effect, and is signed or otherwise adopted by the parties, this document will now alone represent the terms of the act. Instead of leaving the wheat mingled with the chaff, the wheat has been definitely selected and set apart in a single mass. The wheat existed there, no less before than now, but it has now been placed in a single receptacle by itself. "The process of embodying the terms of a legal act in a single memorial may be termed the integration of the act, i. e., its formation from scattered parts into an integral documentary unity. The practical consequence of this is that its scattered parts, in their former and |