This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
22 Ware v. Allen, 128 U. S. 590, 32 L. ed. 563.
23Pym v. Campbell, 6 El. & B. 370.
24 American Sales Book Co. v. Whit-aker, 100 Ark. 360, 37 L. R. A. (N.S.) 91, 140 S. W. 132.
25Burke v. Dulaney, 153 IT. S. 228, 38 L. ed. 698.
26Nutting v. Ins. Co., 98 Wis. 26, 73 N. W. 432.
27 Rivard v. Continental Casualty Co.,' 116 Me. 46, 100 Atl. 101.
28 School District v. Lapping, 100 Minn. 139, 12 L. R. A. (N.S.) 1105, 110 N. W. 849.
29 Bowes v. Christian, 222 Mass. 359, 110 N. E. 1034.
30 United States. Dair v. United States, 83 U. S. (16 Wall.) 1, 21 L. ed. 491.
Alabama. Guild v. Thomas, 54 Ala. 414, 25 Am. Rep. 703.
Kentucky. Hudspeth's Administrator v. Tyler, 108 Ky. 520, 56 S. W. 973.
Maine. Readfield v. Shaver, 50 Me. 36, 79 Am. Dec. 592.
Michigan. Hall v. Parker, 37 Mich. 590, 26 Am. Rep. 540; Heaaell v. Johnson, 63 Mich. 623, 6 Am. St. Rep. 334, 30 N. W. 209.
Minnesota. School District v. Lapping, 100 Minn. 139, 12 L. R. A. (N.S.) 1105, 110 N. W. 849; American Multi-graph Sales Co. v. Grant, 135 Minn. 208, 160 N. W. 676.
Nebraska. Cutler v. Roberts, 7 Neb. 4, 29 Am. Rep. 371.
31 Goutermont v. Bland, 99 Kan. 431, 162 Pac. 270.
32 Stiebel v. Grosberg, 202 N. Y. 266, 36 L. R. A. (N.S.) 1147, 95 N. E. 692.
33 Stiebel v. Grosberg, 202 N. Y. 266, 36 L. R. A. (N.S.) 1147, 95 N. E. 692,
34 Stiebel v. Grosberg, 202 N. Y. 266, 36 L. R. A. (N.S.) 1147, 95 N. E. 692.
35Gilman v. Gross, 97 Wis. 224, 72 N. W. 885.
36Georgia. Clark v. Bryce, 64 Ga. 486.
Indiana. Whitcomb v. Miller, 90 Ind. 384.
Iowa. Micklewait v. Noel, 69 Ia. 344, 28 N. W. 630.
Kentucky. Smith v. Moberly, 49 Ky. (10 B. Mon.) 266, 52 Am. Dec. 543.
South Carolina. Wylie v. Bank, 63 S. Car. 406, 41 S. E. 504.
Tennessee. Lookout Bank v. Aull, 93 Tenn. 645, 42 Am. St. Rep. 934, 27 8. W. 1014.
Vermont. Farmers', etc., Bank v. Humphrey, 36 Vt. 554, 86 Am. Dec 671.
37 Carroll County v. Ruggles, 69 Ia. 269, 58 Am. Rep. 223, 28 N. W. 590. "A surety on a bond can not defeat his liability thereon by showing that it was delivered in violation of agreements between himself and the principal or any other co-maker, unknown to the party for whose benefit it was given." Richardson v. Bank, 57 O. S. 299, 314, 48 N. E. 1100.
Whether an express condition precedent in a contract precludes extrinsic evidence of another oral condition which is not inconsistent with the express provisions of the contract or not, is a question upon which there is some conflict of authority. It seems to be held generally that there is as much reason for admitting extrinsic evidence of an oral condition precedent to the taking effect of a contract which itself contains a different condition precedent as there is for admitting extrinsic evidence of an oral condition precedent to a contract which on its face purports to be absolute.39 The fact that a contract of subscription is by its terms not to take effect unless a specified amount is subscribed, does not prevent extrinsic evidence of other consistent oral conditions precedent.40 There is some authority for holding that an express condition precedent precludes extrinsic evidence of another oral condition precedent.41 If a contract for conducting an advertising campaign contains a provision that the conducting of a certain contest is a condition precedent to guaranty of increased sales, extrinsic evidence is inadmissible to show that such contest was a condition precedent to liability upon notes given under such contract.42 If a written contract of subscription contains a number of express conditions, extrinsic evidence is said to be inadmissible to show other oral conditions.43 This, however, may be a case in which the contract itself was to take effect in any event and the oral condition affected performance and not liability. The principle that extrinsic evidence of an oral condition precedent is admissible to show that the contract never took effect, must not be extended to permit extrinsic evidence of conditions or covenants in cases in which it is shown that the contract has taken effect. Extrinsic evidence of this sort is a violation of the parolevidence rule, since it does not affect the existence of the contract but seeks to add new terms to the contract under guise of showing conditions.44
38 Adams v. Morgan, 150 Mass. 143, 22 N. E. 708.
39 Rutherford v. Holbert, 42 Okla. 735, L. R. A. 1915B, 221, 142 Pac. 1009; Golden v. Meier, 129 Wis. 14, 116 Am. St. Rep. 935, 107 N. W. 27.
40 Rutherford v. Holbert. 42 Okla. 735, L. R. A. 1915B, 221, 142 Pac. 1099.
41 Loveland v. Epstein Drug Co., 227 Mass. 311, 116 N. E. 570.
42 Loveland v. Epstein Drug Co., 227 Mass. 311, 116 N. E. 570.
43 Guthrie & Western Ry. Co. v. Rhodes, 19 Okla. 21, 21 L. R. A. (N.S.) 490, 91 Pac. 1119. .(In this case, however, the conditions possibly affected the performance of the contract of subscription rather than its validity.)
This general principle is sometimes stated in the form that extrinsic evidence of a condition is inadmissible unless the condition affects the consideration.45 Evidence which tends to show a want of consideration,46 or a total failure of consideration,47 is admissible even if it takes the outward form of evidence to annex condition.48
In some jurisdictions where the maker has voluntarily put the instrument into the. possession of the adversary party he can not show that it was not to take effect until some other party had signed it, on the theory that an escrow can not be deposited with the adversary party.49 Thus where a deed 50 or a mortgage51 has been voluntarily surrendered to the grantee or mortgagee, it can not be shown that it was to be inoperative until the happening of a specified event.
44 Abbott v. Kennedy, - Ark. - , 201 S. W. 830; Probasco v. Shaw, 144 Ga. 416, 87 S. E. 466; Grannis v. Stevens, 216 N. Y. 583, 111 N. E. 263 [rehearing denied, Grannis v. Stevens, 217 N. Y. 664, 112 N. E. 1060]; Colvin v. Goff, 82 Or. 314, L. R. A. 1917C, 300, 161 Pac. 568.
"In the case at bar the appellee admitted that the contract took effect and was completed at the time of the delivery, and he undertook to show by parol testimony that it was to be paid only in the event the dividends earned from the stock were sufficient to pay the consideration. In Gorrell v. Home Life Ins. Co., 63 Fed. 371. 377, 11 C. C. A. 240, 246, it is said:
" 'The proof proposed here was of an agreement inconsistent with the writing, which in itself is complete and unambiguous. The written promise to pay is absolute. By the proposed proof that promise would have been nullified, and the note converted into an agreement that the sum named should be paid out of accruing commissions, and not otherwise. The case is clearly dis-tinguishable from Burke v. Dulaney, 153 U. S. 228, where evidence was admitted to show a parol agreement that a note should not become operative as a note until the maker could examine the property for which it was given. That attack was upon the delivery, and not, as in this case, upon the meaning of the terms of a note, of the delivery of which no question has been made either in the pleadings or proofs. " Abbott v. Kennedy, - Ark. - , 201 S. W. 830. See Sec. 2145, 2179 and 2196.
45 Colvin v. Goff, 82 Or. 314, L. R. A. 1917C, 300, 161 Pac. 568.
46 See Sec. 2180.
47 See Sec. 2185.
48 Colvin v. Goff, 82 Or. 314, L. R. A. 1917C, 300. 161 Pac. 568.
49Findley v. Means, 71 Ark. 289, 73 S. W. 101; Clanin v. Machine Co., 118 Ind. 372, 3 L. R. A. 863, 21 N. E. 35. See Sec. 1206.
50 Hubbard v. Greeley, 84 Me. 340, 17 L. R. A. 511;Wipfler v. Wipfler, 153 Mich. 18, 16 L. R. A. (N.S.) 941, 116 N. W. 544; Dorr v. Midelburg, 65 W. Va. 778, 23 L. R. A. (N.S.) 987, 65 S. E. 97.
51 Sargent v. Cooley, 12 N. D. 1, 94 N. W. 576.