Before taking up these questions as to the admissibility of evidence it will be well to note the difference between contracts under seal and simple contracts in writing, as illustrated by the rules of evidence respecting them. A contract under seal, as we have seen, derives its validity from the form in which it finds expression; therefore, if the instrument is proved, the contract is proved, unless it can be shown to have been executed under such circumstances as preclude the formation of contract, or to have been delivered to a third person under conditions which have remained unfulfilled, so that the deed is no more than an escrow. A written contract not under seal, however, is not the contract itself, but only evidence of the contract, - a record of the contract.8 Even where statutory requirements for writing exist, as under the statute of frauds, the writing is nothing more than evidence of the agreement. A written offer containing all the terms of the contract, signed by the proposer, and accepted by the other party by performance on his part, is enough to enable the latter to sue under the statute of frauds. And where there is no such necessity for writing, it is optional with the parties to express their agreement by word of mouth, by action, or by writing, or partly by one and partly by another of these processes. It is always possible, therefore, that a simple contract may have to be sought for in the words and acts, as well as in the writing, of the contracting parties. But in so far as they have reduced their meaning to writing they cannot adduce evidence in contradiction or alteration of it. They put on paper what is to bind them, and so make the written document conclusive evidence against them.4
3 Wake v. Harrop, 6 Hurl. & N. 768. See "Contracts," Dec. Dig. (Key-No.) § SO; Cent. Dig. § 144.
4 Id. See "Contracts," Dec. Dig. (Key-No.) § 30; Cent. Dig. § 144; "Evidence," Dec. Dig. (Key-No.) §§ 384,, 385; Cent. Dig. §§ 1757, 1758.
214. A contract under seal is proved by evidence of the sealing and delivery.
215. In proving a simple contract evidenced by a document, parol evidence is admissible for the following purposes:
(a) To show that the defendant is the person who made the contract.
(b) To supplement the writing where it only constitutes a part of the contract.
(c) To connect several documents which together show the contract, except -
EXCEPTION - Where the contract is within the statute of frauds.
A contract under seal is proved by evidence of the sealing and delivery. At common law it is necessary to call one of the attesting witnesses where a contract under seal is attested;6 but by statute in many jurisdictions this is no longer necessary. Where the attesting witnesses are dead, or without the jurisdiction of the court, or are for any other reason incapable of testifying, the sealing and delivery of the deed is sufficiently shown by proof of their handwriting.6 In a number of states it has been considered that proof of the handwriting of the grantor or obligor furnishes more satisfactory evidence of its execution than proof of the handwriting of the subscribing witness, and such proof has been held sufficient, except in the case of instruments which the law requires to be attested by witnesses.7
5 Burke v. Miller, 7 Cush. (Mass.) 547; Henry v. Bishop, 2 Wend. (N. Y.) 575; Jackson v. Gager, 5 Cow. (N. Y.) 383; Hess v. Griggs, 43 Mich. 397, 5 N. W. 427; McAdams' Ex'rs v. Stilwell, 13 Pa. 90; Brigham v. Palmer, 3 Allen (Mass.) 450; Melcher v. Flanders, 40 N. H. 139; Jackson v. Sheldon, 22 Me. 569; Dorr v. School Dist, 40 Ark. 237. See "Evidence," Dec. Dig. (Key-No.) §§ 370, 374; Cent. Dig. §§ 1588, 1559-1578, 1584.
6 Valentine v. Piper, 22 Pick. (Mass.) 85, 33 Am. Dec. 715; Beattie v. Hil-Uard, 55 N. H. 428; Davis v. Higgins, 91 N. C. 382; Richards v. Skiff, 8 Ohio St. 586; Elliott v. Dycke, 78 Ala. 150; Troeder v. Hyams, 153 Mass. 536, 27 N. E. 775; Stebbins v. Duncan, 108 U. S. 32, 2 Sup. Ct. 313, 27 L. Ed. 641. See "Evidence," Dec. Dig. (Key-No.) § 374; Cent. Dig. §§ 1583-1612.
7 Newsom v. Luster, 13 111. 175; Cox v. Davis, 17 Ala. 714, 52 Am. Dec. 199; Woodman v. Segar, 25 Me. 90; Valentine v. Piper, 22 Pick. (Mass.) 85, 33 Am. Dec. 715; Landers v. Bolton, 26 Cal. 393. See "Evidence," Dec. Dig. (Key-No.) § 375; Cent. Dig. §§ 1591-1606.