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.
A written order for goods which does not purport to set forth the terms of the contract, may be shown to be an order given in pursuance of a prior oral contract by which such goods were consigned to the person by whom such order was sent and which were not purchased by him.8 Under a contract to install machinery the intention of the parties as to the services to be rendered in performance of such contract may be considered.9 An incomplete contract in writing, which provides that a certain sum shall be raised, does not prevent the parties from showing that the actual agreement provided for an arrangement by the party who is to receive such amount for payment of such sum by other parties.10 Under a written charter of a boat, an oral contract to insure it whenever it was taken away from a specified harbor may be shown.11 If a note which a son gives to his father on receiving a conveyance of realty, shows that a part of the amount of such note is to be regarded as his share of his father's estate, extrinsic evidence is admissible to show that the remaining part of the purchase price of such land was regarded as a debt.12 Where a written contract was made by a widow to take ten thousand dollars, and the amount given her by will, in lieu of the distributive share of her husband's estate, and the contract was not complete on its face, it was permissible to show additional terms of the contract, and to show what parties had assented thereto.13 Where a written assignment of a chose in action is incomplete, the oral contract under which it was given may be shown.14 Extrinsic evidence is admissible to show the conditions of an escrow;15 that the vendee knew of the possession by a squatter of the realty sold;16 that the amount of notes given included not only the purchase price of the realty conveyed, but also other claims;17 whether a stock option includes dividends or not,18 and whether in a memorandum for the sale of a quarry, "with all the improvements thereon," the parties had agreed upon the sale of any of the personal property used in connection there-with.19 If a contract for the sale of personal property is incomplete, evidence of an oral warranty is admissible. A written contract for removing earth, which fails to state the distance which it is to be hauled or the points to which it is to be hauled, is incomplete upon its face and may be supplemented by extrinsic evidence.20 A written contract which provides that earth is to be "excavated and loaded on cars," is ambiguous as to the person who is to furnish the cars, and such ambiguity may be removed by extrinsic evidence.21 If a contract is one which does not in legal effect impose upon either party definitely the duty of furnishing cars,22 such as a contract for excavating material and for hauling it,23 extrinsic evidence is admissible to show which party is to furnish the cars. If a contract for the sale of realty contains a provision as to part of the consideration, evidence of the actual agreement of the parties as to the total amount of the consideration may be considered.24 If a contract for an automobile agency does not appear on its face to be complete, the agreement of the parties that the agents of the seller were to assist the purchaser in closing sales with his customers, is admissible.25 If a deed does not specify the area of the realty or the price thereof, extrinsic evidence is admissible to show the agreement between the parties as to the area and the price per acre.26
New York. Di Menna v. Copper & Evans Co., 220 N. Y. 391, 115 N. E 993.
North Carolina. Sumner v. Graham County Lumber Co.. 175 N. Car. 654, 96 S. E. 97.
North Dakota. Gilbert Manufacturing Co. v. Bryan, - N. D. - , 166 N. W. 806.
Oklahoma. Smith v. Bond, 56 Okla. 112, 155 Pac. 1116; O. K. Transfer & Storage Co. v. Neill, - Okla. - , L. R. A. 1917A, 58, 159 Pac. 272; Rawlings v. Ufer, - Okla. - , 161 Pac. 183.
South Carolina. Sloan v. Courtenay, 54 S. Car. 314, 32 S. E. 431.
South Dakota. Inner Shoe Tire Co. v. Brown, 39 S. D. 100, 163 N. W. 572; Rosholt v. Woulph, - S. D. - , 167 N. W. 158.
Texas. Magnolia Warehouse & Storage Co. v. Davis, 108 Tex. 422, 195 S W. 184.
Virginia. Standard Paint Co. v. Vietor, 120 Va. 595, 91 S. E. 752.
Wisconsin. Smith v. Pfluger, 126
Wis. 253, 2 L. R. A. (N.S.) 783, 105 N. W. 476.
3 See Sec. 1333 et seq., 2311 and 2312.
4 See notes 1 and 2, this section.
5 "If the writing shows on its face a definite and complete contract between the parties, parol evidence will not be received to vary, modify, or contradict its terms. The rule does not apply to cases where the instrument shows incompleteness on its face, and parol evidence is allowed to show an agreement referable to the incompleteness, when not inharmonious with the writing. The question in such cases is whether there is a vacuum to be filled. If the alleged omission of an important detail is lacking which can be supplied by legal presumption, the want of express provision leaves no vacuum" Pryor v. Ludden & Bates Southern Music House, 134 Ga. 288, 28 L. R. A. (N.S.) 267, 67 S. E. 654. See Sec. 2020 et seq.
6Sund v. Flagg & Standifer Co., 86 Or. 289, 168 Pac. 300.
7 SeeSec. 2060.
8 Inner Shoe Tire Co. v. Brown, 39 S. D. 100, 163 N. W. 572.
9 Missouri District Telegraph Co. v. Morris, 243 Fed. 481.
10 Strickland v. Johnson, 21 N. M. 599, 157 Pac. 142.
11Dittmar v. Frederick Starr Contracting Co., 249 Fed. 437.
12Stretch v. Stretch, 191 Mich. 416, 158 N. W. 185.
13 Baldwin v. Hill, 97 Ia. 586, 66 N. W. 889.
14 Randall v. Turner, 17 0. S. 262, and see Sec. 2154.
15 Smith v. Smith, 173 Cat. 725, 161 Pac. 495; Fred v. Fred (N. J. Eq.), 50 Atl. 776; Northern Trust Co. v Bruegger, 35 N. D. 150, 159 N. W. 849.
See also, Sec. 1192 et seq.
16 Leonard v. Woodruff, 23 Utah 494, 65 Pac. 199.
17Brader v. Brader, 110 Wis. 423, 85 N. W. 681.
18 Rivers v. Sugar Co., 52 La. Ann. 762, 27 So. 118.
19Crown Slate Co. v. Allen, 199 Pa. St. 239, 48 Atl. 968.
If the contract is not required to be in writing or to be proved by writing, and it consists of several writings, no one of which is complete in itself, they may be connected by oral evidence.27
Extrinsic evidence is not admissible to show oral terms inconsistent with those reduced to writing.28 Analagous to the rule that an oral provision consistent with an incomplete written memorandum may be proved and enforced, is the rule that if the written contract is ambiguous, the parol evidence rule does not prevent the parties from relying on the real contract, though oral, as long as it does not contradict terms of the written contract which are plain and unequivocal.29 So if the provisions of the written contract admit, a similar result is reached by holding that the written contract will be construed as having the same scope as the oral contract, in pursuance of which it is entered into.30
20 Magnolia Warehouse & Storage Co. v. Davis, 108 Tex. 422, 195 S. W. 184.
21 Magnolia Warehouse & Storage Co. v. Davis, 108 Tex. 422, 195 S. W. 184.
22 Magnolia Warehouse & Storage Co. v. Davis, 108 Tex. 422, 195 S. W. 184.
23 Magnolia Warehouse & Storage Co. v. Davis, 108 Tex. 422, 195 S. W. 184.
24 Nelson v. McElroy, 140 Minn. 429, 168 N. W. 179.
25Brockway v. Blair, 53 Mont. 531, 165 Pac. 455.
26 Caughron v. Stinespring, 132 Tenn. 636, L. R. A. 1916C, 403, 179 S. W. 152.
27 Nelson v. Willey, 97 Md. 373, 55 Atl 527.
28 Forsyth Mfg. Co. v. Castlen, 112 Ga. 199, 81 Am. St. Rep. 28, 37 S. E. 485; Bond v. Perrin, 145 Ga. 200, 88 S. E. 954; Brosseau v. Jacobs' Pharmacy Co., 147 Ga. 185, 93 S. E. 293; Gilbert Manufacturing Co. v. Bryan, - N. D. - , 166 N. W. 805; Railroad v. Morey, 47 O. S. 207, 7 L. R. A. 701, 24 N. E. 269.
If the written contract is incomplete or ambiguous upon its face, and the extrinsic evidence which is offered leaves the terms of the original contract doubtful, the court will regard the existence and terms of such contract as too indefinite and uncertain to be enforced.31 It has been held that the fact that the rate of interest is left blank shows that no rate was agreed upon or that the legal rate was intended, and accordingly extrinsic evidence to show the rate actually agreed upon was held to be inadmissible.32