In the last lecture I compressed the observations I had to make on the general nature of Contracts under Seal. I now arrive at the class denominated Simple Contracts, which comprises all of a degree inferior to deeds, whether they be verbal or written. For though, as I shall presently explain to you, there is, in practice, a very wide distinction between written and verbal contracts; yet in theory the law of England acknowledges no difference between them at all, but denominates them all by the same term, Simple Contracts (a). And indeed they are so far alike that they all, whether verbal or written, are subject to those marks of inferiority to contracts by deed which you heard described in the last lecture.
Thus, they do not create an estoppel. They are capable of being put an end to without the *solemnity of a deed. They form no ground of action (except an administration action in the Chancery Division) against the heir or devisee, even though he be expressly named in them; and they require a consideration to support and give them validity, though, as I shall have occasion to explain in a future lecture, there is one case, even among simple contracts, in which the consideration need not be shown, but is presumed to exist, unless its existence can be disproved. In these respects, all simple contracts are like one another. But there are two great practical differences or distinctions between verbal and written contracts, which it is necessary to explain at some length to you.
(a) See Beckham v. Drake, 9 M. & W. 79.
The first concerns the mode in which they are to be proved.
The second depends on the answer to the question, Does the subject-matter of the contract, by law, require a writing, or not ?
Now, as to the first distinction, concerning the mode in which written contracts are to be proved, it results from an inflexible rule of the law of evidence, that, when a contract is reduced into writing, it shall be proved by the writing, and by that only. For the written instrument, being constituted by the parties the expositor of their intentions, must, in order to effectuate that object, be the only instrument of evidence to prove their intentions. If, instead of being constituted by the parties the expositor of their intentions, a written instrument *is constituted such by a positive rule of law, the same result must follow. Thus, when, by the Statute of Frauds, operation is given to a written instrument exclusively, the object of the statute would be defeated if parol evidence were admitted in lieu of the required writing, or in any way to alter it. To admit oral evidence as a substitute for instruments to which, by reason of their superior authenticity and permanent qualities, an exclusive authority is given by the parties, would be to substitute the inferior for the superior degree of evidence, conjecture for fact, and presumption for the highest degree of legal authority. It would substitute loose recollection and uncertainty of memory for the most sure and faithful memorials which human ingenuity can devise or the law adopt (b), and would introduce a dangerous laxity and uncertainty as to all titles to property, which, instead of depending on certain fixed and unalterable memorials, would then be made to depend upon the frail memories of witnesses, and be perpetually liable to be impeached by fraudulent and corrupt practices. And where the law, for reasons of policy, requires written evidence, to admit oral testimony in its place would be to subvert the rule itself (c).
(b) Countess Rutland's Case, 5 Rep. 26. Stark. Evid. 4th ed. 651.
In applying this rule, therefore, no *contemporaneous verbal expressions must be allowed to be engrafted upon the writing, so as to alter it by adding to, or taking away from its import. You will find this principle laid down and enlarged upon in all the treatises on Evidence (d); indeed, there is hardly any branch of the law which has given rise to so much subtle and anxious discussion and inquiry as this single rule of the law of Evidence. The late Vice-Chancellor, Sir James Wigram, has, in one of the ablest treatises existing in our law libraries, discussed its applications to the single head of Devises.
You must, therefore, take care not to be misled as to the meaning of the rule; for, as may be expected, it involves nice distinctions. It would be impossible to do complete justice to these within the limits of this work; still, however, I think that I can point out their nature, so far as to give a notion of the sort of questions which are likely to arise, sufficient to prevent surprise by such questions, should they occur in practice.
Now, the rule itself, as I have said, is, that no parol, that is, verbal, evidence of what took place at the time of
(c) lb. 649. Marshall v. Lynn, 6 M. & W. 109.
(d) See, for Instance, Starkie on Evid. 4th ed. 648, where the application of this rule is very fully discussed; Taylor on Evidence, 7th ed. Part II. c. xix, "Admissibility of Parol Evidence to affect written instruments." making a written contract1 is admissible for the purpose of contradicting or altering it; for instance, if A. contract in writing with B., *to deliver him 100 quarters of wheat within three months, at so much per quarter, no evidence would be admissible to show that it was agreed, at the time, that the wheat should be delivered only in case of the arrival of a ship which the vendor expected from Odessa with wheat on board; for that would be, by parol evidence, to turn an absolute written contract into a conditional one (e). So, if a promissory note or bill of exchange (which, not being under seal, is, you must be aware, a simple contract), were made payable on one day, verbal evidence could not be admitted to show that it was meant to be payable upon another (f). So also where a written contract for the sale of goods did not specify any time for delivering them, the vendor was not allowed to give evidence that at the time of forming the contract it was made a condition of the sale, that the purchaser should immediately take them away (g). In like manner, where the written contract mentioned no time for *payment, and where, consequently, the law implies the term of immediate payment, the Court held this to be the meaning of the written contract, and would not allow it to be proved that by the usual course of dealing between the parties, six months' credit was to be given (h). A defendant bargained by parol with the plaintiff, who was a baker, to supply him with flour of the same quality as that which he supplied to another customer, one M.; and the defendant sent the plaintiff as a note of the contract the following memorandum, signed by himself: "Sold to Mr. H. (the plaintiff) 25 sacks whites X S, at 68s. per sack net," omitting to state that the quality should be the same as that supplied to M.; and afterwards delivered flour corresponding to the note. The flour being inferior to that supplied to M., the plaintiff sued him for his breach of contract. But the Court of Common Pleas considered that parol evidence was not admissible to show that the plaintiff had bargained for other flour than that mentioned in the written note. "The contract," said Maule, J., "whatever it was, was reduced into writing, and when that is so we must look at the writing and at nothing else, even though terms previously agreed upon by the contracting parties be omitted from it" (i). And *as verbal evidence of what took place at the time of making a written contract cannot be given to show that the meaning of it is different from what its words import, so neither can evidence that the parties have acted upon the supposition of its being different have that effect (j).1