Where unsealed written contracts have not been given by statute the incidents of specialties, the mere fact that an agreement is in writing should not give to it any incident which at common law was peculiar to sealed writings. It has sometimes been too hastily supposed even where written contracts have not been given immunity from the requirement of consideration that a recital of the receipt of a specified consideration precludes the parties from disputing the validity of the instrument for lack of consideration. With such documents, however, it is only the parol evidence rule which need be considered. Beyond the limits of that rule there is no principle of estoppel by writing.90 The parol evidence rule forbids any attempt to prove that the promises stated in a writing do not accurately represent the agreement of the parties;91 but it should be observed and insisted upon that the parol evidence rule has no application to recitals of fact. If it had, a recital of consideration could not be shown to be inaccurate in any particular, or, for any purpose, any more than a promise can be.92 It follows, therefore, that the only case where the parol evidence rule is applicable to a recital of consideration is where the consideration recited is itself a promise. That is, where the contract purports to be bilateral the parol evidence rule clearly forbids either party to a writing, though unsealed, to show that his own promise or that of his co-contractor was not accurately stated or was not given, as the writing states, in consideration of the other promise.93 This is the only estoppel by writing. It should,

New York Central Ins. Co. v. Natl., etc, Ins. Co., 20 Bert. 471; Goit v. Insurance Company, 26 Barb. 189, 192; Kendrick v. Mutual Benefit Life Ins. Co., 124 N. C. 315, 32 S. E. 728; Southern Life Ins. Co. p. Booker, 9 Heisk. 606, 24 Am. Rep. 344. A similar rule has been stated as applicable to contracts of suretyship, 1 Brandt, Suretyship, Sec. 52; McNerney v. Downs,

92 Conn. 139, 101 Atl. 494; States v. United States, etc., Co., 81 Kans. 660, 106 Pao. 1040, 26 L. R. A. Sec. N. 80 865. Such statements as to insurance policies and suretyship contracts, illustrate the disposition referred to in the preface of this book, to split up a general rule of the common law into a number of rules stated as if they were peculiar to a limited class of contracts.

90"AD contracts are by the laws of England distinguished into agreements by specialty, and agreements by parol; nor it there any such third class, as some of the counsel have endeavored to maintain as contracts in writing." Skynner, G. B., delivering the opinion of all the judges to the Lord Chancellor, which was adopted by the House of birds as a basis for affirming the de-cieion of the Exchequer Chamber. Rann v. Hughes, 7 T. R. 350 n. (a).

91 It is nowhere questioned that in the case of an unsealed writing every freedom that is permissible in proving the consideration of a sealed instrument is allowable. Keene v. Aetna Life Ins. Co-, 213 Fed. 893; Bolles v. Sachs, 37 Minn. 315, 33 N. W. 862; Barker v. Bradley, 42 N. Y. 316,320,1 Am. Rep. 521; Hendrick v. Crowley, 31 Cal. 471;

Schneider v. Turner, 130 111. 28, 22 N. E. 497, 6 L. R. A. 164; Gelpoke v. Blake, 19 Ia: 263; Voight v. Voight, 96 Neb. 465, 148 N. W. 88; Moore v. Ringo, 82 Mo. 468; Holmes' Appeal, 79 Pa. 279; Patchin v. Swift, 21 Vt. 292.

92See Farquhar v. Farquhar, 194 Mass. 400, 405, 80 N. E. 654.

93 St Louis & S. F. Ry. Co. v. Dearborn, 60 Fed. 880, 23 U. S. App. 66, 9 C. C. A 286; Arnold v. Arnold, 137 Cal. 291, 70 Pac. 23; Harding v. Robinson, 176 Cal. 534, 166 Pac. 808; Brosseau v. Jacobs' Pharmacy Co., 147 Ga. 185, 93 S. E. 293; Pickett v. Green, 120 Ind. 684, 22 N. E. 737; Reisterer a. Carpenter, 124 Ind. 30, 24 N. E. 371; Indianapolis U. Ry. Co. v. Houlihan, 167 Ind. 494, 60 N. E. 943; Cohen v. Jackoboice, 101 Mich. 409, 59 N. W. 665; Carter v. Weber, 138 however, be observed that frequently when consideration is recited in a written contract as having been given, it will be true that though the consideration was not given the parties in fact agreed that the consideration recited should be given as such. This intention on any theory may be shown, since the evidence supports the instrument though varying a recital. But the recital of the receipt of a fictitious consideration is also common in written agreements, where in fact there was no consideration, and no intention to give any. Where, for instance, a consideration of one dollar is recited as having been paid in return for a stated promise, the parties ordinarily have not actually bargained for any such exchange, and if the truth cannot be shown, a promise will be enforced which in fact has no valid consideration. It would be destructive of the doctrine of consideration to hold that an admission of consideration in an unsealed writing estopped the promisor in favor of the promisee, who of course knows the actual facts,94 from showing that no consideration existed. If merely saying in writing that a specified fictitious consideration has been received is enough to make a promise binding, a new and hitherto unacknowledged kind of formal obligation has been created. Clear as this is on principle, a doubt has been cast upon it by a remark made by Story, J., of the United States Supreme Court, and by decisions which have followed his statement. He said: "The guarantor acknowledged the receipt of the one dollar, and is now estopped to deny it. If she has not received it, she would now be entitled to recover it." 95 And this remark has been quoted in a later decision of the same court 96 and has served as the basis for other decisions or statements to the same effect.97 The error in Judge Story's

Mich. 676, 101 N. W. 818; Kramer v. Gardner, 104 Minn. 370,110 N. W. 926, 22 L. R. A. (N. S.) 492; Jackson v. Chicago, etc., R. Co., 54 Mo. App. 636; Wells v. Aufrecht, 96 Neb. 402, 147 N. W. 1125; Ferry v. Stephens, 66 N. Y. 321; Union Machinery Ac. Co. v. Darnell, 89 Wash. 226, 154 Pac. 183. But see Floating Ex. v. Sullivan, 41 Md. 162. 94 As to a third person who justifiably relies on a recital of consideration, however, there may well be an estoppel. Watkins p. Robertson, 105 Va. 269,54 S. E. 33,5 L. R. A. (N. S.) 1194, 115 Am. St. Rep. 880.