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.
The parol evidence rule applies to actions at law, whether they are brought upon the contract to enforce it or whether the contract is used as a means of defense.1 Even if the actual contract between the parties is not properly reduced to writing because of mistake or fraud, the common law has no means of reforming such contract so as to make it express the true intent of the parties.2 A mistake in expression in a chattel mortgage can not be shown in an action of replevin.3 Such relief must be sought in equity in a suit which is brought for the purpose of reforming the written contract so as to make it conform to the actual contract between the parties.4 While relief can not be given in an action at law, a declaration or complaint which is filed upon the theory that the action is one at law, may be amended so as to set up a cause of action in equity for the purpose of reforming the contract.5
Kentucky. Kreitz v. Gallenstein, 170 Ky. 16, 186 S. W. 132.
Maine. Bassett v. Breen, - Me. - , 107 Atl. 832.
Michigan. Grand Rapids Wood Finishing Co. v. Hatt, 152 Mich. 132, 115 N. W. 714; Phelps v. Brevoort, - Mich - , 174 N. W. 281.
Minnesota. Hagstrom v. McDougall, 131 Minn. 389, 155 N. W. 391; Anderson v. Upper Cuyuna Land Co., 132 Minn. 382, 157 N. W. 581; Virginia & Rainy Lake Co. v. Helmer, 140 Minn. 135, 167 N. W. 355.
New Mexico. Locke v. Murdoch, 20 N. M. 522, L. R. A. 1917B, 267, 151 Pac. 298.
North Carolina. American Potato Co. v. Jenette Bros. Co., 172 N. Car. 1, 89 S. E. 791; Caffey v. Oak Furniture Co., 175 N. Car. 387, 95 S. E. 619.
North Dakota. Gilbert Mfg. Co. v. Bryan, - N. D. - , 166 N. W. 805.
Oklahoma. Lusk v. White, - Okla. - , 161 Pac. 541; J. M. Hoard, Jr., Co. v. Grand Rapids Showcase Co., - Okla. - , 173 Pac. 844.
Oregon. Muir v. Morris. 80 Or. 378, 154 Pac. 117 [rehearing denied, Muir v. Morris, 80 Or. 378, 157 Pac. 785]; Snow v. Beard, 82 Or. 518, 162 Pac. 258; Leavitt v. Dimick, 86 Or. 278, 168 Pac. 292.
Pennsylvania. Williams v. Notopolos, - Pa. St. - , 103 Atl. 290.
Tennessee. McCrary v. Bank, 97 Tenn. 469, 37 S. W. 543.
Utah. Johnson v. Geddes, 49 Utah 137, 161 Pac. 910.
West Virginia. Mineral Ridge Mfg. Co. v. Smith, 79 W. Va. 736, 91 S. E.
817; Paxton v. Bencdum-Trees Oil Co., 80 W. Va. 187, 94 S. E. 472.
On the subject of the parol evidence rule in general, see The Parol Evidence Rule, by James B. Thayer, 6 Harvard Law Review, 325, 417; The Parol Evidence Rule in California, by Robert L. McWilliams, 7 California Law Review, 417; A Brief History of the Parol Evidence Rule, by John H. Wigmore, 4 Columbia Law Review, 338; The Superiority of Written Evidence, by J. W. Salmond, 6 Law Quarterly Review, 75; Extrinsic Evidence in Aid of Interpretation, by Sidney L. Phipson, 20 Law Quarterly Review, 245; Ambiguities in Written Instruments, 5 American Law Register (N.S.), 140; A View of the Parol Evidence Rule, by John H. Wigmore, 38 American Law Register (N.S.), 337, 432, 683, and Extrinsic Evidence in Respect to Written Instrument, by Charles A. Graves, 28 American Law Review, 321.
1 North Carolina. Caffey v. Oak Furniture Co., 175 N. Car. 387, 95 S. E. 619.
North Dakota. Gilbert Mfg. Co. v. Bryan, - N. D. - , 166 N. W. 805.
Pennsylvania. Phoenix Mill Co. v. Kresge, 254 Pa. St. 36, 98 Atl. 772.
Washington. Van Doren Roofing & Cornice Co. v. Guardian Casualty & Guaranty Co., 99 Wash. 68, 168 Pac. 1124.
Wisconsin. Jilek v. Zahl. 162 Wis. 157, 155 N. W. 909.
If the suit in equity is brought for the purpose of enforcing the contract and not for the purpose of reforming it, the parol evidence rule applies in equity as well as at law.6 Whatever difference between law and equity appears to exist in actual results, is based not upon the different theories of law and equity as to the operation and application of the parol evidence rule, but upon the conflict between law and equity as to the effect of mistake, misrepresentation, fraud, and the like. This intention to set forth the intention of the parties in such writing is, in all actions upon the contract for the purpose of enforcing it, to be regarded as the standardized intention of the parties and not as the actual intention which either or both of the parties had in the particular case.7 While it is sometimes said that there is a presumption that the parties intend the written contract to be the oral repository of their common intention, this presumption is said to be conclusive.8
In stating the rule in this form it is assumed that the contract itself is valid and that both in its original formation and in its reduction to writing the contract is free from fraud and mistake, and from other defenses which render the contract either void or voidable.9 Accordingly, a written contract which is conceded to be valid or the validity of which is established, which is free from ambiguity and which appears to be complete upon its face, can not be contradicted by extrinsic evidence;10 nor can prior or contemporaneous parol agreements be used to contradict the written contract,11 so as to substitute for the intention therein expressed that expressed in such oral agreements.12 To violate this rule and to admit extrinsic evidence of the intention of the parties direct for the purpose of displacing their intention as shown in the written contract, is "to substitute the inferior for the superior degree evidence - conjecture for fact - presumption for the highest degree of legal authority - loose recollection and uncertainty of memory for the most sure and faithful memorials which human ingenuity can devise or the law adopt.13 In an early Massachusetts case, the court after observing that it was "remarkable that so considerable a degree of obscurity should remain at this day (1814) upon a branch of the law of evidence so constant in its recurrence in courts of law," said: "When parties have deliberately put their engagements in writing, in such terms as impart a legal obligation, without any uncertainty as to the object or extent of such obligation, it shall be presumed that the whole engagement of the parties, and the extent and manner of their undertaking, was reduced to writing; so that oral testimony of 9. previous colloquium between the parties, or of conversation or declarations at the time when it was completed or afterwards, would tend in many instances to substitute a new and different contract for the one which was really agreed upon, to the prejudice, possibly, of one of the parties."14 strike out a clause." Lumber Underwriters v. Rife, 237 U. S. 605, 59 L. ed. 1140