1 Lapham v. Whipple, 8 Met. 59; Brigham v. Rogers, 17 Mass. 573; Blanchard v. Trim, 38 N. Y. 225 ; Clark v. Merriam, 25 Conn. 576 (1857) ; Miles v. Roberts, 34 N. H. 245 (1856) ; Seago v. Deane, 4 Bing. 459; Franklin v. Long, 7 Gill & J. 407. Parol evidence is competent to show a special contemporaneous agreement to charge nothing for services to be rendered by one who was not an attorney at law, but was " authorized and employed " by a written power of attorney to manage and defend a suit at law. Joannes v. Mudge, 6 Allen, 245 (1863). Parol evidence is admissible if it does not contradict or vary the terms of a written contract, but only makes an addition to it. Malpas v. The London &.S. W. Railway Co., Law R. 1 C. P. 336 (1866). Thus, where the defendant was indebted to the plaintiff on a note, and at his request the plaintiff discharged him from the debt by an instrument under seal, parol evidence was held admissible on the part of the plaintiff to prove, that before the discharge was executed, the defendant promised that if the plaintiff would execute it he would pay the amount due by the note with interest within two years. Clarke v. Tap-pin, 32 Conn. 56 (1864). . 2 Lapham v. Whipple, 8 Met. 59. 3 Stearns v. Hall, 9 Cush. 31.
4 Barker v. Bradley, 42 N. Y. 316 (1870).
5 Hersey v. Verrill, 39 Me. 271 (1855).
6 Jacobs v. Benson, 39 Me. 132 (1855).
1 1 Greenl. on Evid. § 294.
2 Wigglesworth v. Dallison, 1 Doug. 201; Hughes v. Gordon, 1 Bligh, 287 ; Senior v. Armytage, Holt, N. P. 197 ; Hutton v. Warren, 1 M. & W. 466; White v. Sayer, Palm. 211.
3 Messmore v. New York Shot and Lead Co., 40 N. Y. 422 (1869).
4 Blanchard v. Hilliard, 11 Mass. 85; Renner v. Bank of Columbia, 9 Wheat. 581; Bank of Washington v. Triplett, 1 Peters, 25; City Bank v. Cutter, 3 Pick. 414. Where negotiable paper is drawn to a person by name, with addition of " cashier " to his name, but with no designation of the particular bank of which he was cashier, parol evidence is admissible to show that he was the cashier of a bank which is plaintiff in the suit, and that in taking the paper he was acting as cashier and agent of that corporation. Baldwin v. Bank of Newbury, 1 Wall. 234 (1863).
5 Yeats v. Pim, Holt, N. P. 95, and note; Holding v. Pigott, 7 Bing. 465, 474; Blackett v. Royal Exch. Ass. Co., 2 Cr. & J. 244.
6 Bliven v. N. E. Screw Co., 23 How. 420 (1859).
§ 825. Parol evidence will also be admitted to show that an instrument is void, and never had any legal existence or binding force.1 Thus, fraud, illegality of the subject-matter, want of delivery,2 duress, incapacity either in fact or in law, and whatever would vitiate the contract, ah initio, may be given in evidence to invalidate a written contract.3 But evidence to vary or impair the legal effect of a contract, where fraud or want of good faith is not alleged, is inadmissible.4
§ 826. Parol evidence is often admissible to show that one signer to a note or other contract, who is apparently a principal, was in fact only a surety, and known to be such by the party seeking to hold him as principal.5
§ 827. So, also, recitals of facts in an instrument may be contradicted or explained, where the party is not estopped to deny them. As, for instance, where a charter-party was dated February 6th, and conditioned that the ship should sail on or before February 12th, parol evidence was admitted to show that it was not executed until after the day upon which she was to sail, and that the condition was therefore waived.6 So, also, parol evidence is admissible to prove that a strict compliance with the terms of the contract, or with certain legal requisitions, was waived. Thus, a waiver of notice by the maker or indorser of a promissory note may be proved ;l or a change of the place of presentment; or an enlargement of the time; or a total remission of the whole claim by the holder. So, also, parol evidence may be given to prove an entirely new agreement in substitution for the original,2 or in addition to it;3 or to prove an insufficient, or additional,4 or illegal consideration.6 Thus, parol evidence is admissible to show that at the time a promissory note was given by A. to B. for money lent, an agreement was made to pay a certain sum as extra interest, and that all the payments made by A. were for the extra interest, and not upon the note.6
1 Thus parol evidence is admissible to show that certain subscriptions were confidential in character, and therefore fraudulent. N. Y. Exchange Co. v. De Wolf, 31 N. Y. 273 (1865).
2 Parol evidence is admissible to show that an instrument was inchoate merely, and was delivered as an escrow to a third person. Sweet v. Stevens, 7 R.I. 375 (1863).
3 2 Starkie on Evid. 340; 1 Greenl. on Evid. § 284, and cases cited; Buckler v. Millerd, 2 Vent. 107; Stouffer v. Latshaw, 2 Watts, 165; Van Valkenburgh v. Rouk, 12 Johns. 338; Webster v. Woodford, 3 Day, 90; Barrett v. Buxton, 2 Aik. 167; Goodwin v. Hubbard, 15 Mass. 219; Boyce v. Grundy, 3 Peters, 219 ; Johnson v. Miln, 14 Wend. 195 ; Tayloe v. Riggs, 1 Peters, 591.
4 Baltes v. Ripp, 3 Keyes, 210 (1866).
5 See Davis v. Barrington, 10 Fost. 517.(1855).
6 Hall v. Cazenove, 4 East, 477; Tait on Evid. 332; Breck v. Cole, 4 Sandf. 79 ; Abrams v. Pomeroy, 13 111. 133. Unless the date is made a part of the agreement itself, as it is in a note payable sixty days after date. Joseph v. Bigelow, 4 Cush. 82. Parol evidence of an erroneous date, in a mortgage of personal property, not under seal, is admissible. Partridge v. Swazey, 46 Me. 414 (1859).
1 Patterson v. Vose, 43 Me. 552 (1857). Waiver of a condition in a deed may be proved by parol evidence. Leathe v. Bullard, 8 Gray, 545 (1857). .
2 Thus, a tenant gave the demandant two deeds, each of an undivided half of premises, the whole of which was demanded, and the tenant was permitted to show by parol evidence that the second deed was, by agreement of the parties thereto, merely a substitute for the first deed, on account of some real or supposed defect therein. Fisk v. Fisk, 12 Cush. 150 (1853).