95 Lawrence v. McCalmot, 2 How. 428,452, 11 L. Ed. 326.
96 Davis p. Wells, 104 U. S. 159, 167, 26 L. Ed. 686.
97 Southern Bell Tel. & Tel. Co. v. Harris, 117 Ga. 1001, 44 S. E. 885; statement, for error it must be considered, is not that it directly denies any principles of law, but by a fictitious construction assumes to treat an acknowledgment of the receipt of one dollar by way of consideration if not true literally, because no money was received as amounting to a promise to give a dollar. Having thus fictitiously treated an admission of an alleged fact as a promise to make it true, the parol evidence rule becomes applicable to the case.98 If this were sound the same principle might be appllied to every written receipt. The argument is answered in a New York decision:99 "It is said that it is an agreement to receive the sum named in full payment of his contract. That statement, however, is incorrect, for it does nothing of the sort. Nothing is promised. At most it is a mere admission of a past transaction or of an existing fact. It is a mere acknowledgment that an amount of money has been received by the plaintiff in full payment of his account. Hence, it must be regarded as a receipt only and not as a contract.
" That such a receipt, being an informal and non-depositive writing, may be modified, explained or contradicted by parol, is well established by the authorities in this state and elsewhere."
The policy of the law requires consideration, and no agreement of the parties to forego the requirement can take its place. It will be observed that the so-called estoppel amounts at most to an agreement to forego consideration. Both parties know the facts. There is no reliance on a misstatement. Where the parties state a promise as consideration, as has been seen, the parol evidence rule fastens that agreement upon them irrespective of their actual intention or oral agreement.1 But the recital of an alleged past fact which both parties know to be untrue will not deceive the court, and should not operate as a promise when the parties have manifested no intent to promise.2 A statement in a written contract of an
Schneider v. Turner, 130 111. 28, 22 N. E. 497, 6 L. R. A. 164; Seyferth v. Groves, etc., Co., 217 111 483, 76 N. E. 522; Riley v. International Banana Food Co., 185 111. App. 629, 637 (but see Pabst Brewing Co. v. LePage, 186 111. App. 468); Fuller v. Artinan, 69 Hun, 546,24 N. Y. S. 13 (but see Komp v. Raymond, 175 N. Y. 102, 108, 67 N. E. 113; Leader v. De Loynea, 150 N. Y. App. Div. 868, 135 N. Y. S. 948); McPherson v. Fargo, 10 S. D. 611, 74 N. W. 1057, 66 Am. St. Rep.
98 In Seyferth v. Groves, etc., R. Co., 217 111. 483, 75 N. E. 522, a consideration of one dollar recited in a writing as given for an option was in fact tenoned, but declined for the reason that if the dollar was wanted at all, the promisor would "take it all at once;" that is, when the option should be exercised, and the land to which it related paid for. The court said (at page 486), "It was equivalent to say* ing to appellee that he waived the payment, or that he preferred postponement of the payment, or that, as between the parties, it should be considered as paid though the money was not to be received until a later adjustment," and held the option binding in spite of a subsequent revocation. It seems impossible to support the decision. To admit that consideration may be waived is to say that the rule of law requiring consideration can be changed if the parties object to it.
99 Komp v. Raymond, 175 N. Y. 102, 108, 67 N. E. 113.
1 See further, infra, Sec. 610. 2 Presbyterian Church v. Cooper, 112 N. Y. 517, 20 N. £. 352; MeCourt v. Peppard, 126 Wis. 326,105 N. W. 800. In Stewart p. Chicago, etc., R. Co., 141 Ind. 55, 69, 40 N. E. 67, a release was set up as a defence to an action for personal injuries. The release recited a consideration of S31.50. Want of consideration was set up by way of replication. The court said, at page 69, "In Pickett v. Green, 120 Ind. 584, in speaking of the rule that the consideration expressed in a writing may be varied or contradicted by parol this court has said: "The reason generally given for the rule is, that the language with reference to the consideration is not contractual; it is merely by way of recital of a fact, viz., the amount of the consideration, and not an agreement to pay it, and hence such recitals may be contradicted.'
"Referring to the general rule that parol evidence cannot be admitted to contradict the terms of a written contract, it was there further said that 'out of this grows the exception to the rule first above stated, that where the contract is complete upon its face, a stipulation as to the consideration becomes contractual, and where there is either a direct and positive promise to pay the consideration named, or an assumption of an encumbrance on the part of a grantee in a deed which becomes binding upon its acceptance, then the ordinary rules with reference to contracts apply, and the consideration expressed can no more be varied by parol than any other portion of the written contract.'
"In our judgment, the consideration expressed in the writing before us is not contractual, but is manifestly a recital of the amount of the consideration. It includes no agreement to pay or assume any sum or liability. It may be considered apart from the obligations of the appellant, and its statement was not essential to the validity of such obligations, but it might have been established by parol. We have no doubt that the cases correctly applying the rule that no parol inquiry may be made into the consideration expressed, are those where the consideration consists in the performance of some duty which is, by the terms of the writing, undertaken on the one side for the benefit of the other. Such duties cannot be diminished or enlarged by parol. As we have said, the consideration of the contract before us involves the performance of no duty. The contract recites, as a consideration for the relinquishment therein stated, the payment to the appellant of a sum of money.
"If this recital is false, the same existing fact, as that something other than a promise has been received as consideration, though not conclusive, is, however, prima facte evidence of that fact.3