In proving a simple contract, whether in writing or not parol evidence is always necessary to show that the party sued is the party who made the contract and is bound by it. In no other way could this be shown.
Oral evidence must of course supplement the writing where the writing only constitutes a part of the contract. For instance, if a person writes another that he will give the latter a certain sum for an article, and tells him to ship it if he accepts the offer, parol evidence of the shipment would be necessary to prove conclusion of the contract. And so, if a person puts the terms of an agreement into a written offer which the other party accepts by word of mouth, or if, where no writing is necessary, he puts part of the terms into writing, and arranges the rest by parol with the other party, oral evidence must be given in both cases to show that the contract was concluded upon those terms by the acceptance of the other party.8
If the contract is signed by an attesting witness, it has been said that "so long as the evidence of the subscribing witness can be produced, it is the best - the primary and only - evidence of execution." 9
So, also, where the evidence of a contract consists of several documents which do not on their face show their connection with each other, parol evidence is admissible to show their connection,10 except in the case of contracts which the statute of frauds requires to be expressed in writing.11
There are circumstances, such as the loss or inaccessibility of the written contract, in which parol evidence of the contents of a document is allowed to be given, but this is a part of the general law of evidence.
8 Harris v. Rickett, 4 Hurl. & N. 1. See "Evidence," Dec. Dig. (Key-No.) § 417; Cent. Dig. §§ 1874-1899.
9 RICHMOND & D. R. CO. v. JONES, 92 Ala. 218, 9 South. 276, Throckmorton Cas. Contracts, 337, per Coleman, J. See "Evidence," Dec. Dig. (Key-No.) § 374; Cent. Dig. §§ 1583-1612.
10 Edwards v. Insurance Soc, 1 Q. B. Div. 503; Bergin v. Williams, 138 Mass. 544; Barney v. Forbes, 118 N. Y. 580, 23 N. E. 890; Blake v. Coleman, 22 Wis. 415, 99 Am. Dec. 53; Beer v. Aultman-Taylor Co., 32 Minn. 90, 19 N W. 388; Myers v. Munson, 65 Iowa, 423, 21 N. W. 759; Colby v. Dearborn, 59 N. H. 326. See "Evidence," Dec. Dig. (Key-No.) § 1,16; Cent. Dig. §§ 1903-1905.
11 Ante, p. 109.
216. A document having been proved, parol evidence is admissible to show that it is not in fact a valid 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. Parol evidence is always admissible to show that the document is not in fact a valid agreement. It may be shown, for instance, that incapacity of one of the parties, want of genuine consent because of mistake, fraud, etc.,13 or illegality of object,14 made the agreement of the parties unreal, or such as the law forbids to be carried out. In case of a simple contract, it may be shown, where the promise only appears in writing, that no consideration was given for the promise.15 In case of a deed,
12 Following substantially Anson, Cont. (4th Ed.) 241-243.
13Grand Tower & C. G. R. Co. v. Walton, 150 111. 428, 37 N. E. 920; Ewing v. Wilson, 132 Ind. 223, 31 N. E. 65, 19 L. R. A. 767; Cooper v. Finke, 38 Minn. 2, 35 N. W. 469; Anderson v. Walter, 34 Mich. 113; Wanner v. Landis, 137 Pa. 61, 20 Atl. 900; Universal Fashion Co. v. Skinner, 64 Hun, 293, 19 N. Y. Supp. 62; Kranich v. Sherwood, 92 Mich. 397, 52 N. W. 741; Scroggin v. Wood, 87 Iowa, 497, 54 N. W. 437; Hicks v. Stevens, 121 111. 186, 11 N. E. 241; Marston v. Insurance Co., 89 Me. 266, 36 Atl. 389, 56 Am. St Rep. 412; ante, p. 244. See "Evidence," Dec. Dig. (Key-No.) §§ 428-437; Cent. Dig. §§ 1973-2020.
14 Allen v. Hawks, 13 Pick. (Mass.) 79; Friend v. Miller, 52 Kan. 139, 34 Pac. 397, 39 Am. St Rep. 340; Buffendeau v. Brooks, 28 Cal. 642; Beadles v. McElrath, 85 Ky. 230, 3 S. W. 152; Totten v. U. S., 92 U. S. 105, 23 L. Ed. 605; New England Mortg. Security Co. v. Gay (C. C.) 33 Fed. 636; Lewis v. Willoughby, 43 Minn. 307, 45 N. W. 439; Benicia Agricultural Works v. Estes, 3 Cal. Unrep. 855, 32 Pac. 938; ante, p. 314. See "Evidence," .Dec. Dig. (Key-No.) §§ 433-487; Cent. Dig. §§ 1990-2020.
15 As to the conclusiveness of the recital of consideration in a written contract or conveyance, there has been a great deal of conflict. The New York court held in a leading case that the consideration clause in a conveyance is only prima facie evidence of a consideration, except for the purpose of giving effect to the operative words of the conveyance, and that to that end alone is it conclusive. The rule, it seems, applies to all written contracts, and is the prevailing doctrine in this country. McCrea v. Purmort, 16 Wend. 460, 30 Am. Dec. 103. See Bolles v. Sachs, 37 Minn. 315, 33 N. W. 862; Goodspeed v. Fuller, 46 Me. 141, 71 Am. Dec. 572; Rhine v. Ellen, 36 Cal. 362; Miller v. Edgerton, 38 Kan. 36, 15 Pac. 894; Nichols, Shepard & Co. v. Burch, 128 Ind. 324, 27 N. E. 737; Barbee v. Barbee, 108 N. C. 581, 13 S. E. 215; Id., 109 N. C. 299, 13 S. E. 792; Mobile Sav. Bank v. McDonnell, 89 Ala. 434, 8 South. 137, 9 L. R. A. 645, 18 Am. St. Rep. 137; Macomb v. Wilkinson, 83 Mich. 486, 47 N. W. 336; Halpin v. Stone, 78 Wis. 183, 47 N. W. 177; Louisville, St. L & T. R. Co. v. Neafus, 93 Ky. 53, 18 S. W. 1030; Hall v. Solomon, 61 Coun. 476, 23 Atl. 876, 29 Am. St Rep. 218; Silvers want of consideration cannot ordinarily be shown, because its validity does not depend on consideration, but on its form; but, where fraud or undue influence is alleged against the validity of the deed, the absence or inadequacy of consideration may be shown in corroboration of other evidence tending to sustain the allegation.
Apart from such circumstances as these, it is permissible to prove a parol condition suspending the operation of the contract; and this applies both to deeds and simple contracts. A deed, for instance, may be shown to have been signed, or to have been delivered to a third person subject to the happening of an event or the doing of an act. In the latter case, until the event happens, or the act is done, the deed remains an escrow, and the terms upon which it was delivered may be proved by extrinsic evidence; but, as we, have seen, this cannot be where the deed is delivered to the other party himself.16 •
So, also, with simple contracts in writing. Evidence may be given to the effect that a document purporting to be a contract is not so in fact. It may be dependent upon a condition not expressed in the document, so that, until the condition happens, the parties agree that the written contract is to remain inoperative. In a case involving this point, the law was stated as follows: "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 defense 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 defense may be set up without ground, * * * 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 v. Potters, 48 N. J. Eq. 539, 22 Atl. 584; Hill v. Whidden, 158 Mass. 2G7, 33 N. E. 526; Bristol Sav. Bank v. Stiger, 86 Iowa, 344, 53 N. W. 2G5. See "Evidence," Dec. Dig. (Key-No.) §§ 433 - 437; Cent. Dig. §§ 1990-2020.
16 Ante, p. 67; Richards v. Day, 63 Hun, 635, 18 N. T. Supp. 733; Haworth v. Norris, 28 Fla. 763, 10 South. 18; Gregory v. Littlejohn, 25 Neb. 368, 41 N. W. 253; note 19, infra. Proof that parties who signed a bond did so on condition that other persons named therein as sureties would also sign it is competent to show that it was never completely executed. State v. Wallis, 57 Ark. 64, 20 S. W. 811. See "Evidence," Dec. Dig. (Key-No.) §§ 420, 444 Cent. Dig. §§ 1728, 1795, 1S00, 1804,, 1815, 1929-1944,.
those so signing. The distinction in point of law is that evidence to vary the terms of an agreement in writing is not admissible, but evidence to show that there is not an agreement at all is admissible." 17