Nichols, 1 Paige 220; Wills v. Cowper, 2 Hamm. 312; Kerr v. Moon, 9 Wheat. 565; McCormick v. Sullivant, 10 Id. 192; Darby v. Mayer, Id. 465; Golson v. Ebert, 52 Mo. 260; Hildreth v. Shepherd, 65 Barb. 265; Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. St. 173; Gray v. Jackson, 51 N. H. 9; As to the rules applied to questions of interest and usury, see Story's Conflict of Laws, § 298; 2 Parson on Contracts, 582 et seq.; Depau v. Humphreys, 2 Mart. 1 La. 1; Andrews v. Pond, 13 Pet. 65; Peck v. Mayo, 14 Vt. 33; Chapman v. Robertson, 6 Paige, 627; Quince v. Callandar, 1 Sessions, 160; Scofield v. Day, 20 Johns. 102; Boyce v. Edwards, 2 Pet. 111; Fanning v. Consequa, 17 Johns. 511; Vinthrop v. Carleton, 12 Mass. 4; Foden v. Sharp, 4 Johns. 183; Whiston v. Stodder, 8 Mart. (La.) 35; Blanchard v. Russell, 13 Mass. 1; Blake v. Williams, 6 Pick. 286; Braynard v. Marshall, 8 Pick. 194. A discharge of a contract under the law of a country which is not that where the contract was made or to be performed, will not discharge the contract in the country where it was made or to be performed. 2 Parsons on Contracts, 587. Very v Mc. Henry, 22 Me. 296.

SECTION II

OF THE ADMISSIBILITY OF ORAL EVIDENCE IN WRITTEN CONTRACTS.

242. Inadmissibility of oral evidence to add to, alter, or contradict, a written contract.-Most systems of jurisprudence have manifested a decided preference for written memorials over verbal representations founded on the doubtful or imperfect recollection of witnesses. The French law requires a very large class of contracts to be put into writing, "in consequence," it observes, " of the corruption of manners and subornation of witnesses," and formally prohibits the admission of oral evidence against the contents of a written document. (f) It is a fundamental rule of our own common law, that oral' evidence shall not be given to add to, subtract from, or alter or vary, any description of written contract: “quoties in verbis nulla est ambiguitas, nulla expositio contra verba fienda est." This general rule or principle of law has been established on the ground that writing stands higher, in the scale of evidence, than oral testimony, and that the stronger evidence ought not to be controlled or altered by the weaker. (g) It has been held that oral evidence is inadmissible to show that a grant of an annuity, not (f) POTH. OBL. No. 785. (g) Davis v. Symonds, 1 Cox, 404. 'See a distinction between "oral" and "parol " evidence in Morgan's Best on Evidence, vol. i., § 223, note (y).

2

'Huse v. McQuade, 52 Mo. 388; Clark v. N. Y. Life Ins. Co. 7 Lans. (N. Y.) 323; Kerr v. Kuykendall, 44 Miss. 137; Howlett v. Howlett, 56 Barb. 467; Campbell v. Johnson, 44 Mo. 247; Delano v. Goodwin, 48 N. H. 203; Perkins v. Young, 82 Mass. (16 Gray) 389; Cocke v. Bailey, 42 Miss. 81; Kirk v Hartman, 63 Pa. St. 97.

made subject to redemption on the face of the deed, was nevertheless intended by the parties to be redeemable; (h) also, that the verbal declaration of an auctioneer, made at the time of sale, cannot be given in evidence in opposition to the printed conditions of sale, unless the declaration has been fraudulently made. (i) If, in a contract of charter-party, a person states himself to be the owner of a vessel, and then proceeds to let or charter the vessel for a certain term, he cannot contradict, by oral testimony, his own averment in writing, and show that he acted only as the agent of the owner. (k) If a written contract of purchase and sale describes the nature and character of the things sold, oral evidence is inadmissible to add to or alter the written description; (7) if it fixes the time for the completion of the purchase, or the time for the delivery of the goods, a contemporary agreement to substitute another day must be expressed in writing; (m) and if the time for payment is named, oral evidence is inadmissible to show that the payment was to be prolonged, or that it was to depend on a contingency, or be made out of a particular fund. So, on a written contract for a weekly hiring, oral evidence is inadmissible to show that a yearly hiring was intended. (n) And on a contract to manufacture and deliver goods at a specified time, for a specified price, oral evidence is inadmissible to show that a portion of the price agreed to be paid for the goods was in consideration of the undertaking to deliver them at

(h) Haynes v. Hare, 1 H. Bl. 662. (i) Gunnis v. Erhart, 1 H. Bl. 289. Shelton v. Livius, 2 Cr. & J. 411. Higginson v. Clowes, 15 Ves. 522. Eden v. Blake, 13 M. & W'. 618.

(*) Humble v. Hunter, 17 L. J., Q. B. 350.

(1) Sinith v. Jeffryes, 15 L. J., Ex.

325. Harnor v. Groves, 24 Id. C. P. 53.

(m) Stead v. Dawber, 10 Ad. & E. 57; 2 P. & D. 451. Marshall v. Lynn, 6 M. & W. 109. Stowell v. Robinson, 3 Bing. N. C. 928.

(n) Evans v. Roe, L. R., 7 C. P.

138.

the times specified, and that the market price was much less than that agreed to be paid. (o) Oral evidence is inadmissible to make a promissory note, absolute upon the face of it, conditional or payable upon a contingency, (p) or to make a contract which, by the terms of it, is to commence in præsenti, to commence in futuro; (g) or to show that it was agreed, when a bill or note was given or indorsed, that the instrument should be renewed, and that payment should not be demanded at the time when it became due; (r) but where bought and sold notes differed, oral evidence was admited to prove an arrangement between the broker and the purchaser, by which the apparent variance was explained and shown to be immaterial. (s)

A warranty, made orally on the completion of a written contract of sale, cannot be introduced as part of the contract, if the contract itself is silent as to the fact of such warranty; (t) but a loose and incomplete memorandum of sale will not exclude oral evidence of a warranty. (u) If a written demise be silent as to the payment of the ground rent, (x) or land tax, (y) oral evidence is inadmissible to show that the tenant agreed to pay it. If a written contract of purchase and sale imports that the delivery of the goods and the payment of the price are to be concurrent acts,

(0) Brady v. Oastler, 3 H. & C. 112; 33 L. J., Ex. 300.

(p) Rawson v. Walker, 1 Stark. 361. Moseley v. Hanford, 10 B. & C. 729. Foster v. Jolly, 1 C. M. & R. 703. Free v. Hawkins, I Moore, 535; 8 Taunt. 92. Adams v. Wordley, 1 M. & W. 374. Abrey v. Crux, L. R., 5 C. P. 37: 39 L. J., C. P. 9.

(9) Williams v. Jones, 5 B. & C. 108.

(r) Hoare v. Graham, 3 Campb. 56.

oral evidence is inadmissible to show that credit was bargained for and intended to have been given (2) But a writing containing only part of the contract and not being evidence of a concluded agreement does not shut out oral evidence of the time of payment.' Where the defendant, by letter, ordered the plaintiff to send goods to a wharf, oral evidence was admitted to show that the order was given on the faith of a promise made by word of mouth by the plaintiff to the defendant, that the defendant should have six months' credit for the payment of the goods. (a) When an agreement for a lease has been drawn up in writing, oral evidence cannot be given to show that more premises were intended to be included in the agreement than those actually mentioned in it; or that a greater rent was to be paid than that actually expressed; or that the rent was to be paid quarterly, when, by the agreement, it is to be paid yearly; or that the rent was to commence at a later day than that named in the agreement; for, whenever the contract is reduced into writing, nothing that is not found impressed upon it can be considered as forming part of the contract. (b) But the contract may be evi

(2) Ford v. Yates, 2 Sc. N. R. 645. (a) Lockett v. Nicklin, 19 L. J., Ex. 403; 2 Ex. 93. Stones v. Dowler, 29 L. J., Ex. 122. Morgan v. Griffith, L. R., 6 Ex. 70; 40 L. J., Ex. 46.

1

(b) Meres v. Ansell, 3 Wils. 275. Henson v. Coope, 3 Sc. N. R. 48. Kain v. Old, 4 D. & R. 61. Dickson v. Zizinia, 20 L. J., C. P. 73.

And so exceptions to the rule occur to show circumstances or conditions of signing (Robertson v. Evans, 3 S. C. 330). Or to explain an erasure (Johnson v. Pollock, 58 Ill. 181). Or as to technical terms, or to show that it is an illegal contract (Martin v. Clark, 8 R. I. 389), and the like. And by various other circumstances arising in particular cases. See Weaver v. Fletcher, 27 Ark. 510; Basshor v. Forbes, 36 Md. 154; Arberter v. Day, 39 Conn. 155; Hartford Fire Ins. Co. v. Wilcox, 57 l. 180; Dixon v. Cook, 47 Miss. 220. And see cases cited in note 1, p. 371.