Sec 202

Error of expression (error in nomine) is unessential when there is no error as to the thing referred to. This is a settled principle of the Roman law;1 and the same rule is there applicable to an erroneous designation in a record.2 In our own jurisprudence we have illustrations of this rule in the numerous cases in which parol evidence is admissible to solve latent ambiguities. What the parties mean is to be carried into effect, no matter what are the words they use.3 Hence, while as to strangers, parol evidence is not admissible to vary documents, they are open, as between the parties,4 to parol explanations.5 Parol evidence, also, is admissible to show that a document was not executed, or was only conditional, or that it was conditioned on a non-performed contingency ;6 want of due delivery, or delivery as an escrow, as well as fraud and duress, may be proved by parol.7 A designation of property may, also, when the obscurity is latent, and the error one only of expression, be corrected by parol.8 The name is mutable and immaterial ; it is the thing intended alone that is immutable and material, when the operation of a contract is to be considered.9

Error of expression unessential

1 L. 9, sec 1, D. cont. emt. (18,1), L. 32, D. de verb. obl. (45-1), supra, sec 174.

2 L. 36, 38, D. de cont. emt. (18,1) ; L. 14, pr. D. de in diem addict. (18, 2) ; L. 46, D. loc.cond. (19,2).

3 Supra, sec 174 et seq.; infra, sec 205 ; 660-1; Wh. on Ev. sec 992 etseq., 942; Atty. Gen. v. Brazenose Coll., 2 Cl. & F. 295 ; Atty. Gen. v. Drnm-mond, 1 Dr. & W. 353 ; Stockbridge Co. v. Hudson Co., 102 Mass. 48; Chester Emery Co. v. Lucas, 112 Mass. 424; Fitz v. Comey, 118 Mass. 100; Drew v. Swift, 46 N. Y. 204; Huss v. Morris, 63 Penn. St. 372; Elliott v. Harton, 28 Grat. 766; Edwards v. Tipton, 77 N. C. 222; Rigstee v. Trees, 21 Ind. 227; Talley v. Courtney, 1 Heisk. 715 ; Russell v. Mixer, 42 Cal.

475 ; Altschul p. San Francisco, 43 Cal. 171 ; and other cases cited, Wh. Cr. L. sec 942.

4 Wh. on Ev. sec 920 et seq.; infra, sec 661-2.

5 Wh. on Ev. sec 926.

6 Wh. on Ev. sec 927 etseq.

7 Infra, sec 679.

8 Wh. on Ev. sec 942 ; Atkinson v. Cummins, 9 How. 479 ; Glass v. Hul-bert, 102 Mass. 34; Bartlett v. Gas Co., 117 Mass. 533; Gump's Appeal, 65 Penn. St. 476 ; Groff v. Rohrer, 35 Md. 327 ; Keith v. Ins. Co., 52 111. 518 ; Edwards v. Tipton, 77 N. C. 222; Mc-Pike v. Allman, 53 Mo. 551; Hathaway v. Brady, 23 Cal. 121 ; see supra, sec 174.

9 Supra, sec 174. Infra, sec 803-4. L. 4, pr. de leg. 1 (30 un.).

Within the same limits a designation of an individual (demon-stratio) can be corrected by parol, so as to bring out the person intended in the document.1 And parol evidence is admissible to show that a grantor executed a deed by other than his real name;2 that persons named as beneficiaries were not those really intended ;3 that the real buyer or seller in a sale were not those which the memoranda indicated ;4 that an undisclosed principal is the real party in a transaction in which the agent is the only ostensible person ;5 though parol evidence is inadmissible to discharge a principal by showing that he was only agent;6 and that as to third parties, one was principal and the other surety.7-Parol evidence is admissible to prove the oral terms of a contract that is partly oral and partly written ;8 to prove an oral extension of a contract ;9 to show that a conveyance in fee is in trust, or is a mortgage,10 or is subject to a resulting trust ;11 and to explain or modify the statement of consideration.1 Omitted words, also, will be supplied by extrinsic proof;2 and relief will be granted for mistakes of scriveners.3

1 Infra, sec 601, 661, 803-4 ; Wh. on Agency, sec 291, 296 ; Wh. on Ev. sec 949, 953; Mich. State Bk. v. Peck, 28 Vt. 200 ; Scanlan v. Wright, 13 Pick. 523 ; Peahody v. Brown, 10 Gray, 45 ; Henderson v. Hackney, 23 Ga. 383; Tuggle v. McMath, 38 Ga. 648 ; West-holz v. Retaud, 18 La. An. 285 ; Dunham v. Chatham, 21 Tex. 231.

2 Nixon v. Cobleigh, 52 111. 387 ; Aultman v. Richardson, 7 Neb. 1.

3 Atty. Gen. v. Drummond, 1 Dr. & W. 367 ; Langlois v. Crawford, 59 Mo. 456 ; and cases cited infra, sec 803.

4 Wh. on Agency, sec 719 et seq.; Newell v. Radford, L. R. 3 C. P. 52 ; and infra, sec 802-3 et seq.

5 Garrett v. Handley, 4 B. & C. 664 ; Higgins v. Senior, 8 M. & W. 834; Fowler v. Hollins, L. R. 7 Q. B. 616; Hutton v. Bullock, L. R. 9 Q. B. 572; Nat. Ins. Co. v. Allen, 116 Mass. 398; Coleman v. Bank, 53 N. Y. 393; Oel-richs v. Ford, 21 Md. 489 ; Anderton v. Shoup, 17 Oh. St. 128; Ohio R. R. v. Middleton, 20 111. 629 ; and other cases cited infra, sec 803 ; Wh. on Ev. sec 951. In McCollin v. Gilpin, 44 L. T. 914 (1881), an agreement between the T. Company and M. was as follows: "In consideration for the advance of the sum of 500/., paid by the said M. to the said company, we the undersigned, three of the directors of the said company, hereby agree to repay the said sum of 500/.....And we do hereby assign to the said M., as security for the said advance of 500/., the machines and tools.....As witness our hands, this 5th day of June, 1878. (Signed) A., B., C, directors ; M." The machines and tools mentioned were the property of the company. In an action by M. against A., B., and C, to recover the 500/., it was held, that parol evidence was admissible to show whether it was intended that the defendants should be personally liable upon the above agreement.

6 Wh. on Ev. sec 951.

7 lb. \ 952.

8 lb. sec 1015.

9 lb.sec 1016. 10 lb. sec 1031-2. 11 lb. sec 1035.