inchoate shape, have no longer any legal effect; they are replaced by a single embodiment of the act. In other words: When a legal act is reduced into a single memorial, all other utterances of the parties on that topic are legally immaterial for the purpose of determining what are the terms of their act.'

Question 148: Show how a written contract may be arrived at to make previous correspondence immaterial.

§ 129. (Contracts, Sec. 97.) Parol evidence rule permits proof of contract partly in writing and partly oral.

Case 149. Forsyth Manufacturing Co. v. Castlen, 112 Ga. 199.

Facts: Castlen brought suit against the Forsyth Mfg. Co. on the following contract: "This agreement made and entered into this 25th day of April, 1898, by and between the Forsyth Manufacturing Company of the first part, and A. W. Castlen of the second part, both of the county of Monroe and the state of Georgia, witnesseth: that the party of the first part hereby agrees to pay the party of the second part six cents per pound for one hundred and fifty bales of lint cotton, to be delivered at the warehouse of the said Forsyth Manufacturing Company on the Central Railroad, just above Forsyth, in good merchantable order, at times below set forth. The party of the second part hereby agrees to deliver at the place above designated one hundred and fifty bales of lint cotton, said cotton to be delivered to the Forsyth Manufacturing Company as follows: Fifty bales in September, fifty bales in October and fifty bales in November, 1898, at the place above set forth, and in good merchantable order, all bales to weigh more than 450 pounds each. and should the party of the second part fail or refuse to furnish the full amount of fifty bales each month, as above set forth, then the second party forfeits one-half cent per pound for each pound not delivered at the end of each month of the fifty bales." Castlen was a cotton planter, and the contract made was entered into upon

his land and upon which cotton was growing. The plaintiff Castlen tendered cotton according to his contract, but it was refused on the ground that it was not raised on Castlen's land. The defendant now offers to prove that there was a contemporaneous oral agreement that the cotton should be raised on Castlen's land.

Point Involved: That a contract reduced entirely to writing cannot be modified by parol evidence. Specifically, that if goods are sold under a contract completely reduced to a writing which under the circumstances and upon the face of the contract seems complete, a collateral agreement that such goods shall be grown by the seller cannot be considered. Herein of the question when a contract is to be deemed wholly, and when partially, reduced to writing.

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Совв, Ј.: When parties have reduced the agreement between them to writing, they must abide by the terms of the writing, whatever they may be, and nothing in the writing can be contradicted or varied by parol evidence. If, however, 'a part of a contract only is reduced to writing (such as a note given in pursuance of a contract), and it is manifest that the writing was not intended to speak the whole contract, then parol evidence is admissible.' Civil Code No. 3675 (1). "To bring a case within the rule admitting parol evidence to complete an entire agreement of which a writing is only a part, two things are essential. First, the writing must appear on inspection to be an incomplete contract; and second, the parol evidence must be consistent with and not contradictory of the written instrument.' And a party is at liberty 'to prove the existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, if from the circumstances of the case the court infers that the parties did not intend the document to be a complete and final statement of the whole of the transaction between them.' It appears from the authorities above cited that in order to render parol evidence admis

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sible for the purpose of making complete an incomplete contract, the fact that the contract is incomplete must appear upon the face of the contract by reason of a patent ambiguity, or, although apparently complete on its face, in the light of evidence showing the circumstances surrounding the parties at the time the contract was executed, a latent ambiguity is made to appear. There are many decisions by this court relating to this subject, but it would be useless to refer to or cite all of them. Enough have been cited to show that this court has recognized the rule, that in order to allow parol evidence to be admitted to show a collateral agreement it must appear, either from the contract itself or from the surrounding circumstances, that the contract is incomplete, and what is sought to be shown as a collateral agreement must not in any way conflict with or contradict what is contained in the writing. An examination of the cases decided by this court will show, we think, that this rule has been steadfastly adhered to. There may be some confusion in regard to the way in which it has been applied in some cases, and possibly there have been erroneous applications of the rule; but no case has been called to our attention where there has been any departure from this rule.

"It follows from what is above said, that the court did not err in refusing to allow the defendant to prove, as a collateral agreement between himself and the plaintiff, that the cotton specified in the contract was to be raised on the lands of the plaintiff. The contract between the parties evidenced by the writing calls for a certain number of bales of cotton of a certain description and for no particular cotton. It is clear that, so far as the terms of the contract are concerned, the parties did not intend that the plaintiff should be limited to cotton raised by him. It was a plain and unambiguous contract for the delivery of any cotton, answering to the description specified in the contract, which the plaintiff might see fit to offer to the defendant at the times specified in the contract. Such being the legal effect

of the paper, parol evidence tending to show that the real contract was that the cotton was to be raised on the land of the plaintiff, contradicted, varied and altered the terms of the written instrument."

Question 149: What was the oral agreement offered in evidence in this case? Would the court permit it to be considered? Why?

§ 130. (Contracts, Sec. 98.) Parol evidence rule permits proof of customs.

Case 150. Walls v. Bailey, 49 N. Y. 464.

Facts: Suit brought to recover a balance alleged to be due to plaintiffs for plastering defendant's house. The work was done under a written contract quoting prices at so much "per square yard." Plaintiffs did the work and charged defendant for the work done without deducting for cornices, base boards, doors or windows, claiming that it was a general custom not to deduct such spaces in determining the amount of space covered.

Point Involved: Whether a general custom known or which by reason of its general acceptance must be taken to have been known by both parties, enters into a written contract made by them which contains nothing inconsistent with such custom.

FOLGER, J.: "The contract between the parties was in writing. By it the plaintiffs were to furnish the material for the plastering work of the defendant's house, and to do the work of laying it on. The defendant was to pay them for the work and material a price per square yard. Of course the total of the compensation was to be got by measurement. But when the parties came to determine. how many square yards there were, they differed. The query was, the square yards of what? Of the plaster actually laid on, or of the whole side of the house calling it solid, with no allowance for the openings by windows and doors?

"And it is not to be said of this contract, that it was so plain in its terms as that there could be but one con

clusion as to the mode of measurement, by which the number of square yards of work should be arrived at. It is in this case as it was in Hinton v. Locke (5 Hill, 437). There the work was done at so much per day. The parties there differed as to how many hours made a day's work. That is, what should be the measurement of the day? And there, evidence of the usage was admitted, not to control any rule of law, nor contradict the agreement of the parties, but to explain an ambiguity in the contract? And the proof showing a usage among carpenters that the day was to be measured by the lapse of ten hours, it was held a valid usage; and the contract was interpreted in accordance with it.

"So in the case before us. How shall the number of the square yards of work done be ascertained, is not so determinately reached by the language of the contract as that the law can say there was but one method in the minds of the parties, and this is it.

"And from the cases above cited, it appears that the meaning of words may be controlled and varied by usage; even when they are words of number, length or space, usually the most definite in language.

"Every legal contract is to be interpreted in accordance with the intention of the parties making it. And usage (with a limitation hereafter noticed), when it is reasonable, uniform, well settled, not in opposition to fixed rules of law, not in contradiction of the express terms of the contract, is deemed to form a part of the contract, and to enter into the intention of the parties.

"The jury in the case before us, have found the existence of the usage contended for by the plaintiffs, and upon evidence which well sustains the finding. The same evidence shows that the usage was uniform, continuous and well settled. Nor was it one which was in opposition to well settled principles of law, or which was unreasonable.

"It would seem, however, that upon principle, for a