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.
If the party against whom relief is sought concedes that the contract has taken effect, but seeks to add a condition thereto by extrinsic evidence, he is seeking to add to a written contract by extrinsic evidence of the intention of the parties direct. If the contract is complete and is therefore one within the parol-evidence rule, such evidence is inadmissible.1 The acceptor of a bill of exchange can not show that the acceptance was made upon an oral condition.2 But if "executor" is added to the signature of the acceptor, an oral contract that he should be liable only out of the funds of the estate has been held enforceable.3 Extrinsic evidence is inadmissible to show that a note which is unconditional upon its face is subject to a condition subsequent,4 as that it is to be void if the machinery, in payment of which it is given, does not do a specified amount of work in a specified time,5 or that the note is not to be paid unless the animal for the purchase price of which it is given, conforms to a specified guaranty; 6 that the note is given simply to show the amount of unsold goods in the possession of the makers of the note belonging to the payee, and that the note was not to be paid unless the goods were sold;7 that a mortgage debt is not to be paid unless the payee discharges a mortgage indebtedness upon another piece of land,8 or that its payment is contingent on the existence of an endowment fund,9 or that the maker of a note is to have an option of surrendering the policy for which the note was given, taking out another policy at a lower rate, and having the note canceled,10 or that it is not to be paid if the maker of another note for which this is given should become bankrupt.11 If a note has been delivered with intention that it shall take effect, extrinsic evidence is inadmissible to show that it was not to be paid unless a specified judgment was reversed.12 A written subscription which purports to be conditioned on the subscription of a certain amount, can not be modified by oral evidence so as to show an agreement with reference to the size or use of the ground, the use of the property or the persons who would be entitled to make use of such building.13 A executed a note payable to B, a business college, and B executed a certificate that A had purchased a scholarship which in terms was assignable and would enter college at a specified date. It was held by a divided court that an oral contract that such note should not be paid if the maker did not attend And could not sell the scholarship could not be shown to defeat recovery upon such note.14 So a bond to secure an agent's performance of duty can not be shown to be upon oral condition that the obligee of the bond should give immediate notice to the surety of any default by the agent.15 So a written contract for the sale of hops can not be avoided by showing an oral agreement that there should be no sale if the market was not as represented by the vendor.16 So a written contract for the sale of the business, and the payment of a certain sum of money therefor, can not be avoided by showing an oral agreement that this money should be paid only if the business was successful.17 So a written contract of sale can not be avoided by showing a contemporaneous oral contract giving the vendee the option to cancel his order in certain contingencies.18 So a contract for procuring a right of way for a railroad can not be avoided by showing that the contract was to be defeasible if the railroad company did not bridge a certain river.19 A contract which is conditioned upon the construction of a certain building can not be modified by an oral condition to the effect that such building should not be built unless a street were vacated.20 So a written contract guaranteeing capacity of a heater can not be shown by extrinsic evidence to be conditioned on the vendee's building a stone wall under the house where the heater was to be used.21 So a written contract of guaranty can not be shown to be defeasible if mortgage security for the debt were given.22 A contract which is absolute upon its face can not be shown by extrinsic evidence to be a guaranty.23 If a grantee assumes a mortgage debt in the deed to him, he can not show that this was conditioned on the payment of a cerain sum by the grantor to the grantee.24 A lease which is unconditional upon its face can not be shown by extrinsic evidence to be subject to a condition subsequent,25 such as a condition that the lessee would be permitted to transfer his liquor license to the premises which he had leased.26 Since extrinsic evidence is admissible to show fraud or mistake,27 extrinsic evidence is admissible to show the omission of an oral condition subsequent from a written instrument by reason of fraud or mistake.28
1 United States. Levy, etc., Co. v. Kauffman, 114 Fed. 170, 52 C. C. A. 126.
Arizona. Hurley v. Young Men's Christian Association, 16 Ariz. 26, 52 L. R. A. (N.S.) 220, 140 Pac. 816.
Colorado. Mackey v. Magnon, 28 Colo. 100, 62 Pac. 945 [affirming, 54 Pac. 907].
Georgia. Stapleton v. Munroe, 111 Ga. 848, 36 S. E. 428; Bass Dry Goods Co. v. Mfg. Co., 119 Ga. 124, 45 S. E. 980.
Kentucky. Gathright v. Improvement Co. (Ky.), 56 S. W. 163.
Iowa. McCormick Harvesting Machine Co. v. Markert, 107 Ia. 340, 78 N. W. 33.
Mississippi. Feld v. Stewart, 78 Miss. 187, 28 So. 819.
Oregon. Colvin v. Goff, 82 Or. 314, L. R. A. 1917C, 300, 161 Pac. 568; Learned v. Holbrook, 87 Or. 576, 170 Pac. 530.
Rhode Island. McGinn v. B. H. Gladding Dry Goods Co., 40 R. I. 348, 101 Atl. 129.
Virginia. Triplett v. Woodward's Admr., 98 Va. 187, 35 S. E. 455.
Washington. Post v. Tamm, 91 Wash. 504, 158 Pac. 91.
West Virginia. Rosin Coal Land Co. v. Martin, 81 W. Va. 33, 94 S. E. 368.
Wisconsin. Hyde v. Bank, 115 Wis. 170, 91 N. W. 230.
2 Burns, etc., Co. v. Doyle, 71 Conn. 742, 71 Am. St. Rep. 235, 43 Atl. 483.
3Schmittler v. Simon, 114 N. Y. 176, 11 Am. St. Rep. 621, 21 N. E. 162.
4 Aultman v. Hawk (Neb.), 95 N. W. 695; Post v. Tamm, 91 Wash. 504, 158 Pac. 91.
. Such as a contract that it should be payable out of a certain fund. Van Tassel v. McGrail, 93 Wash. 380, 160 Pac. 1053.
For the opposite view in general, see Gandy v. Weckerly, 220 Pa. St. 285, 123 Am. St. Rep. 691, 69 Atl. 858.
5 Lunsford v. Malsby, 101 Ga. 39, 28 S. E. 496.
6Probasco v. Shaw, 144 Ga. 416, 87 S. E. 466.
7 Western Mfg. Co. v. Rogers, 54 Neb. 456, 74 N. W. 849. But while inadmissible as a defense, such a contract has been held available for a counter-claim, as a collateral contract. Clement Bane & Co. v. Houck, 113 Ia. 504, 85 N. W. 765.
8 Rhodes v. Owens, 101 Wash. 324, 172 Pac. 241.
9 Trustees of Christian University v. Hoffman, 95 Mo. App. 488, 69 S. W. 474.
10Middleton v. Griffith, 57 N. J. L. 442, 51 Am. St. Rep. 617, 31 Atl. 40k
11 Central Savings Bank v. O'Connor, 132 Mich. 578, 94 N. W. 11.
12Colvin v. Goff, 82 Or. 314, L. R. A. 1917C, 300, 161 Pac. 568.
13 Hurley v. Young Men's Christian Association, 16 Ariz. 26, 52 L. R. A. (N.S.) 221, 140 Pac. 816.
14 Jamestown Business College Association v. Allen, 172 N. Y. 291, 92 Am. St. Rep. 741, 64 N. E. 952.
15 Mason, etc., Co. v. Gage, 119 Mich. 361, 78 N. W. 130.
16Lilienthal v. Brewing Co., 154 Mass. 185, 26 Am. St. Rep. 234, 12 L. R. A. 821, 28 N. E. 151.
17Van Arsdale v. Brown, 18 Ohio C. C. 52, 9 Ohio C. D. 488.
18Houck v. Wright (Miss.), 23 So. 422; Hanrahan v. Association, 66 N. J. L. 80, s. c, 67 N. J. L. 526, s. c, 68 N. J. L. 730, 48 Atl. 517.
19 Stanton v. R. R., 59 Conn. 272, 21 Am. St. Rep. 110, 22 Atl. 300.
20 Learned v. Holbrook, 87 Or. 576, 170 Pac. 530.
21 Mouat v. Montague, 122 Mich. 334, 81 N. W. 112.
22Faulkner v. Gilbert, 61 Neb. 602, 85 N. W. 843 [rehearing refused, 62 Neb. 126].
23 Dodge v. Cutrer, 101 Miss. 844, 58 So. 208.
24 Woodcock v. Bostic, 128 N. Car. 243, 38 S. E. 881.
25O'Malley v. Grady, 222 Mass. 202, 109 N. E. 829; McGinn v. B. H. Gladding Dry Goods Co., 40 R. I. 348, 101 Atl. 129; Rosin Coal Land Co. v. Martin, 81 W. Va. 33, 94 S. E. 358.
26 0'Malley v. Grady, 222 Mass. 202, 109 N. E. 829.
27 See Sec. 2180.
28 Rosin Coal Land Co. v. Martin, 81 W. Va. 33, 94 S. E. 358 (obiter).
On the other hand, an express condition subsequent can not be modified by parol evidence of prior or contemporaneous negotiations.29 In all these cases the condition is nothing more than an oral term sought to be incorporated in a complete written contract, or invoked to contradict that part of the contract which has been reduced to writing. It is clearly unenforceable under the parol evidence rule.