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.
2 In re Winzenreid's Estate, 165 Wis. 63, 160 N. W. 1064.
evidence, and, hence, that it should be disregarded, he impliedly consented that it should be considered and acted upon by the referee, who, indeed, had no right to refuse consideration to anything that the parties' had spread before him as evidence to guide him in passing upon their rights.
3Tebbs v. Weatherwax, 23 Cal. 58; Brady v Nally, 151 N. Y. 258, 45 N. E. 547
"The objection that the evidence to prove this fact was parol and inadmissible to vary the terms of the written acceptance can not be raised here for the first time, after the evidence had been given in the court below without objection. Hobart v. Dumerits, 3 Ind. 346; McCloud v. O'Neall, 16 Cal. 392." Tebbs v. Weatherwax, 23 Cal. 58.
"Unless the written agreement is to be regarded as modified by the parol agreement previously made as to partial payments, this evidence was improperly received. The question is whether the parol agreement, although proved without objection, can be given any force after the written agreement was put in evidence. No motion was made to strike out the verbal testimony. No challenge was made to the parol evidence except as stated, unless it was after the close of the trial and the decision of the issues by the referee, by an exception to the finding of fact that 'the plaintiff agreed to pay the defendant the sum of $11,000 in installments, or sums, proportionate to the work done and materials furnished as aforesaid at the time payments were received from the comptroller of the city.' When the plaintiff objected to any testimony showing 'a different agreement than that produced in writing,' it was to a question that was clearly competent, as we have held, to show that the person, who executed the written agreement in his own name, was an agent and not a principal. That objection should be limited in its effect to the question in respect to which it was interposed and not extended so as to change the position of the plaintiff with reference to other testimony received without objection and allowed to remain unchallenged by a motion to strike out, for, obviously, it was neither designed nor adapted to that end. The same is true of the objection made to the offer to show the value of the labor performed and material furnished in part performance of the contract, for no reference was made to the parol evidence that tended to vary the effect of the written agree- . ment, nor was any claim made that such evidence could not properly be considered by the referee in deciding the case. The exception to the finding of fact that payment was to be made in installments, was too late to be effective as notice, either to the defendant or the referee, that the plaintiff was unwilling that the parol evidence under consideration should remain in the case, or that it should be regarded or treated as ineffectual for any purpose. We think that the plaintiff waived his right to object to the consideration of that testimony by failing to make objection when it was received and by neither moving to strike it out, nor directly challenging its effect in any way. If he desired the referee to disregard it, it was his duty to say so before the close of the trial. If he wished to have it out of the case, he should have made a motion to that effect. He could not expect the court, of its own motion, to refuse to consider testimony which he did not see fit to object to when it was received and which he allowed to remain as evidence, without protest or question. By failing to take the position during the trial that it was not legal record shows that the warranty was in writing.4 In this case, however, it does not appear whether the oral evidence was used to contradict the written warranty and thus to violate the parol evidence rule, or whether it was merely a case of the use of secondary evidence of the contents of a written instrument without objection. It has been said that if the petition shows upon its face that oral evidence is to be relied upon to vary a written contract, failure to take advantage of such defect by demurrer or by a motion in arrest of judgment operates as a waiver of an objection to the admission of such evidence.5
This principle has been applied in some cases in which it apparently was not necessary to invoke it. Oral evidence tending to show that a written contract which purported to be a contract of hire was really a contract of conditional sale, is probably admissible, even if objection is made in time, since such written contract is an attempt to evade the rights of the parties under a contract, of conditional sale,6 but its admission has been justified on the ground that the case was tried without objection upon the oral evidence of the actual transaction as well as upon the written contract, and that whatever the true legal construction of the written contract might be, the reviewing court must for the purpose of the particular case, construe it in the light of the oral evidence offered at the trial.7 A provision in a bill of lading which limits the liability of the carrier, must be supported by a consideration, such as a reduction in rates; and evidence which shows that there was no reduction in rates is admissible, showing that there was no consideration for such limitation of common-law liability.8 The admission of such evidence has, however, been justified on the ground that no objection to the admission of such evidence was made and that no exception was taken.9 If a suit is brought in equity for specific performance and evidence which tends to show a mistake in expression is admitted without objection, and the court treats such defense as an equivalent to a cross-petition for reformation and grants such relief, the reviewing court will regard objection to the admission of such evidence as made too late, if it is made in the reviewing court for the first time, although the admissibility of such evidence would have been doubtful if the objection had been made at the trial.10
"It is, however, insisted that in view of the conclusive nature of the presumption that the written agreement embraced the entire contract between the parties, the parol evidence, although received by consent, can not overcome that presumption. The answer to this position is that the parties may, by agreement, express or implied, accept oral testimony instead of the presumption ordinarily arising from written evidence. They have the right to make a rule of evidence for their own case, and they are presumed to have done so when testimony, otherwise incompetent, is received without objection and without any effort to have it stricken from the minutes, or disregarded by the trial court. They may waive the rules established by the courts to govern the admission of evidence, the same as they may waive the rule established by the legislature, that certain contracts must be in writing, and a waiver may be inferred from the failure of the party, for whose benefit the rule was made, to object in due season, or in some way to insist upon compliance with the law." Brady v. Nally, 151 N. Y. 258, 45 N. E. 547.
4 McCormick v. Laugh ran, 16 Neb. 87, 20 N. W. 107.
5 Wiseman v. Thompson, 94 Ta. 607, 63 N. W. 346.
6 See Sec. 2183.
Other principles of law are occasionally confused with the parol evidence rule upon questions of this sort, and accordingly cases are cited in support of the rule that failure to object to the introduction of parol evidence at the trial operates as a waiver of objection to its admissibility, which are really to be explained on other grounds. In some cases the oral evidence is not offered to vary the terms of a written contract, but it is offered without objection as secondary evidence of the terms of the written agreement. If so offered and received without objection the admission of such evidence can not be urged as error in the reviewing court for the first time.11 In other cases the ground of objection to the oral evidence is that it is oral evidence of a contract or other transaction which is required by law to be in writing or to be proved by writing, and such objection is waived if it is offered without objection, at least if no motion is made to strike out such evidence before the case is finally submitted.12 In some cases the oral evidence is offered for the purpose of showing whether or not the written instrument was executed or signed in accordance with the requirements of some specific statute, and the real point which is involved is that error in admitting evidence prematurely may be cured by the subsequent production of proper evidence.13 If the written instrument does not express its purpose, oral evidence is admissible to show that it was entered into by way of security.14 The admission of such evidence has been justified, however, on the theory that no objection was made thereto.15
7 Walters v. Americus Jewelry Co., 114 Ga. 564, 40 S. E. 803.
8 See Sec. 2180.
9 McFadden v. Missouri Pacific Ry. Co., 92 Mo. 343, 1 Am. St. Rep. 721, 4 S. W. 680.
10Chamberlain v. Black, 64 Me. 40.
11 Wagner v. Ellis, 85 Miss. 422, 37 8o. 959; Dorais v. Doll, 33 Mont. 314, 83 Pac. 884; Vietti v. Nesbitt, 22 Nev. 390, 41 Par. 151; Zipp v. Colchester Rubber Co., 12 S. D. 218, 80 N. W. 367.
Oral evidence of contents of judgment. Selleck v. Garland, 184 Mass. 596, 69 N. E. 345.
Oral evidence of title. Steadman v Keets, 129 Mich. 669, 89 N. W. 555.
Oral evidence of contents of letters. Freeland v. Williamson, 220 Mo. 217, 119 S. W. 560.
Oral evidence of contents of mortgage. Kloety v. Delles, 45 Wis. 484.
Even in cases of this sort, it has been held that title to realty can not be proved by parol evidence although such objection was not made specifically when the evidence was offered Presnell v. Garrison, 121 N. Car. 366, 28 S. E. 409 [rehearing denied, 122 N. Car. 595, 29 S. E. 8391.
It will be seen, however, that even after eliminating the cases which do not really involve the parol evidence rule, the numerical weight of authority is in favor of regarding this rule as a rule of evidence in so far that failure to object to the introduction of evidence at the trial operates as a waiver of such introduction in the reviewing court. In taking this view the courts do not seem to have noted the inconsistency between this rule and the general rule that the parol evidence rule is not a rule of evidence, but is a rule of substantive law.