- •§1. Place op contract in jurisprudence. 3
- •§ 2. Obligation.
- •§2. Place of contract in jurisprudence. 5
- •§2. Place of contract in jurisprudence. 9
- •§ 2. Acceptance must he absolute, and identical ivith the terms
- •§ I. Agreement,
- •§ 3. II proposal which has not been accepted does not affect the Till accept-
- •§ 5. It proposal may lapse otherwise tJian by revocation as
- •§ 6. Proposal and Acceptance need not necessarily he written Contracts
- •§ 7. A proposal need not be made to an ascertained person,
- •§ I. Contracts of Record.
- •§ 2, Contract under Seal,
- •§ 3. Simple Contracts required to be in writing.
- •§ 4. ConsideItATiaN.
- •§ I. Political or Professional Status,
- •§ 2. Infants,
- •§ 3. Married women.
- •§ 4. Corporations.
- •§ 5. Lunatic and drunken persons.
- •§ 2. MlSbepbesentation.
- •§ 3. Fraud.
- •§ 4. Duress.
- •§ 5. UamuE Influence.
- •§ I. Nature of Illegality m Contract.
- •§ 18 Upon Stock ExchiEknge transactions is well summarised in the
- •§ 2. Effect of Illeoalitt upon Contracts in
- •§ I. Assignment by act of the parties.
- •§ 2. Assignment of contractual rights and liabilities by
- •§ I. Froof of Document,
- •§ 2. Evidence as to /act cf Agreement.
- •§ 3. Evidence as to the terms of the Contract,
- •§ I. General Rales,
- •§ 2. Rvlea 0/ Law and Equity as to Time and Penalties,
- •§ I. Waiver.
- •§ 2. Svhstituted Contract
- •§ 3. Provisions for DischcMrge,
- •§ 1. Position op pabties whebe a Contbact
- •§ 2. Forms of Discharge bt Breach.
- •§ 3. Eemedies fob breach of Contract.
- •§ 4. DiSghaboe of RiOht of AcTion abisiNa
§ 2. Evidence as to /act cf Agreement.
Thus far we have dealt with the mode of bringing a
document, purporting to be an agreement, or part of an
agreement, before the Court. But extrinsic evidence -is
admissible to show that the document is not in fact a valid
agreement, or that it is not the whole of an agreement.
It may be shown that incapacity of one of the parties, want
of genuine consent, or illegality of object made the agreement
of the parties unreal, or such as the law forbids to be carried
into effect. In the case of a simple contract it may be shown,
where the promise only appears in writing, that no considera-
Per Aidenon. tiou was givcu for tho promise. Such evidence is constantly
l'(l!^:sc R. admissible to contradict the presumption of value given for a
* bill of exchange o^ promissory note. But this must be dis-
tinguished from evidence which may be given as to the total
See Part V. failurc of oousideration promised, for this is a mode of
ch. iii. s. a.
p- 390. discharge.
Chap. I. §a. BULE8 BELATINQ TO EYIDENCB. 23 1
Similarly in the case of a deed, where fraud or undue
influence is alleged, the absence or inadequacy of consideration
may be adduced in derogation of the deed.
But even where none of these circumstances exist, extrinsic Evidence of
evidence may be given to the effect that the document was suspending
made under conditions which show that it was not intended operation
of contract.
to be a contract. It may be proved in the case of a deed in the case
that the delivery was made subject to a condition, and that °^ * ^®^ •
until the condition happened, the deed was never intended to
be operative. Until such time as the condition is fulfilled
the deed remains an escrow, and the terms subject to which see p. 40.
it was delivered may be proved by oral or documentary
evidence extrinsic to the sealed instrument.
And it may be so with a written contract. Evidence may of a simple
contract
be given to the effect that a document purporting to be a
contract is not so in fact. For though apparently absolute
in its terms, it may be dependent upon a condition unex-
pressed in the document, and the terms to which the parties
actually agreed may have been that, until the condition
happened, the written contract was to remain inoperative.
Thus in Fym v, Campbell the defendants agreed to purchase 6 e. & b 37a
from the plaintiffs a portion of the benefits to be derived
from a mechanical invention made by the plaintiff. The
purchase was to be made if one X approved of the invention,
but before this approval had been given they signed a memo-
randum of agreement on the express understanding that they
did BO for convenience only and that the agreement was not
to bind them until the approval of one Abernethie had been
intimated. Abernethie did not approve of the invention.
The plaintiffs nevertheless contended that the agreement was
binding and that the verbal condition was inadmissible in
evidence, because it was an attempt to introduce a new term
into a written contract. But the Court held that the evidence
was admissible, not to vary a written contract but to show
that th&re had neoer been a contract at all. The following is
2^2 iNTEBPRETATION OF CONTBACl*. Part IV.
the judgment of Erie, J. : — ' The point made is, that this is
a written agreement, absolute on the face of it, and that
evidence was adduced to show it was conditional : and if that
had been so it would have been tprong. But I am of opinion
that the evidence sJunved that in fact there was never ctn agree-
ment at aZZ. The production of a paper purporting to be an
agreement by a party, with his signature attached, affords a
strong presumption that it is his written agreement ; and if
in fact he did sign the paper animo contrahendi, the terms
contained in it are conclusive, and cannot be varied by parol
evidence : but in the present case the defence begins one
step earlier: the parties met and expressly stated to each
other that, though for convenience they would then sign the
memorandum of the terms, yet they were not to sign it as an
agreement until Abernethie was consulted. I grant the risk
that such a defence may be set up without ground ; and I
agree that a jury should therefore always look on such a
defence with suspicion ; but, if it be proved that in fact the
paper was signed with the express intention that it should
, not be an agreement, the other party cannot fix it as an
agreement upon those so signing. The distinction in point
of law is, that evidence to vary the terms of an agreement in
pym V. writing is not admissible, but evidence to show that there is
Campbell. . t •
6 E. & B. 374. not an agreement at all w admissible.
Evidence of Evidence too is admissible to show that a document pur-
tary terms, porting to be an agreement is only a portion of that which
was, in fact, agreed upon. This is not at variance with the
rules just laid down. If two parties enter into a contract, and
then for certain purposes put some of its terms into writing,
evidence may be given, not to vary those terms, but to show
that they did not compose the entire contract. An illustration
L. R. 8 ch. 3SX. of this rule is afforded by the caae of Jervis v. Berridge, The
plaintiff agreed to assign to the defendant a contract for the
purchase of lands from M.: the assignment was to be made upon
Chap. I. $ 3. RULES BELATIKG TO EVIDENCE. 233
certain terms, but a memorandum was drawn up for the purpose .
of obtaining a conveyance of the lands from if. to the defendant,
in which, at the request of the latter, nothing was stated but
the assignment, and various terms in favour of the plaintiff
were omitted. The defendant obtained a conveyance of the
lands and afterwards refused to fulfil the terms which were
in favour of the plaintiff. The plaintiff then applied to the
Court of Chancery to get the assignment set aside and a
conveyance of the lands made to him. The defendant set
up the memorandum from which the terms in favour of ihe
plaintiff had been excluded, and contended that the original
agreement being verbal and so unenforceable under 29 Car. II.
c* 3- § 4i ^^6 memorandum, which complied with the terms of
the statute, must prevail. But the Court held that this was
not so : that the memorandum was a * mere piece of machinery Per seibome,
* "^ L. C, at p. 359.
obtaiued by the demurring defendant as subsidiary to and
for the purposes of the verbal a/nd only real agreement under
circumstances which would make the' use of it for any purpose
inconsistent with that agreement dishonest and fraudulent/
Thus we find that extrinsic evidence as to the fact of agree- Summary:
ment is admissible, not only where vitiating elements are
alleged to exist in the formation of the contract, but (i) where
a memorandum of a contract is shown to have been sis:ned pym v. camp.
, ° beU, 6E. &B.
in dependence upon an unfulfilled condition, and without the 374.
aninvas contrahendi ; and (2) where a document is shown to
be only a part of a larger agreement of which some of the J«^is ▼• ^er-
*> *■ 00 ridge, L. R. 8
terms have been reduced to writing for the convenience of the ^^' ^s'-
parties. But these sets of circumstances come alike to the samd
result^ that there has not been such an agreement between the
parties as the document produced would appear to suggest.