In the cases which have been discussed in the preceding sections, the question of the scope and extent of the parol evidence rule has risen in actions upon the contracts in question between the parties to such contracts. The question of the application of the parol evidence rule is also presented in actions between parties to the contract which, however, are not based upon the contract as well as in actions between a party to the contract and a stranger who does not claim under such contract in which case, of course, the action is not upon the contract. By the great weight of authority the parol evidence rule applies only to actions upon the written contract which it is sought to contradict, vary, or modify by extrinsic evidence. It has no application in an action between the parties to a written contract which action is not itself based upon the written contract.1 If the written contract is involved collaterally in an action between the parties thereto, the parol evidence rule does not apply.2 If A has sold property to B under a written contract, and subsequently A institutes criminal proceedings against B for breaking into such building and removing part of such property, and B on acquittal brings an action against A for malicious prosecution, the fact that the contract was in writing does not exclude evidence of the oral agreement between the parties by the terms of which certain property was excepted from the operation of the contract of sale.3 If a tenant brings an action against a landlord for negligence in the management of a steam heating plant over which the landlord kept control, the admission of evidence of oral representations made by the landlord as to the condition of the heating plant is not erroneous, although the written contract of lease contained a provision to the effect that no repairs would he done or paid for by the landlord except those agreed to in writing at the time of rental.4 If A and B enter into a written contract of sale under which A gives notes which B converts, A may show in an action for such wrongful conversion that the notes were given under an oral agreement that TVs agent should hold them until A was satisfied with the operation of the machinery for which they were given, although such provision contradicts the written contract of sale.5 If the action is not brought upon a contract of membership in a stock exchange, extrinsic evidence is admissible to show that one of the parties was a member if such evidence is material to the issue.6 Evidence of prior or contemporaneous oral negotiations may be admissible for the purpose of showing that notice was given to the adversary party, although they may not be admissible to vary the terms of the contract.7

23 Woodson v. Beck, 151 N. Car. 144, 31 L. R. A. (N.S.) 235, 65 S. E. 751.

1 District of Columbia. O'Hanlon v. Grubb, 38 D. C. App. 251. 37 L. R. A. (N.S.) 1213.

Indiana. Noble v. Epperly, 6 Ind. 468.

Iowa. Dean v. Nichols & Shepard Co., 95 Ia. 89, 63 N. W. 582.

Minnesota. Pope v. Hoefs, 140 Minn. 443, 168 N. W. 584.

South Dakota. Elliott v. Chicago, M. & St. P. Ry. Co., 38 S. D. 371, 161 N. W. 347.

New Jersey. Le Pichard v. George N. Thurber Co., 84 N. J. L. 193, 86 Atl. 953.

Pennsylvania. Green v. Green. 255 Pa. St. 224, 99 Atl. 801.

Washington. Low v. McDonald, 90 Wash. 122, 155 Pac. 748.

2 Green v. Green, 255 Pa. St. 224, 99 Atl. 801.

3 Low v. McDonald, 90 Wash. 122, 133 Par. 748.