It must be borne in mind, in the application of all these rules, that evidence of words being used in a certain sense, or that certain incidents are annexed by custom in certain places and amongst certain *classes of persons, does not raise a conclusion of law that the contracting parties used the terms in those senses, or that the incident must necessarily be annexed, but it is only evidence from which a jury may draw the conclusion that such was the meaning of the parties, or such the custom or usage (m). It must also be borne in mind that although, in the classes of cases mentioned, evidence of usage may be received to explain the written contract, yet, when the jury have decided on the meaning of the term, it is not for them but for the Court to put a construction upon the entire contract or document (n).
It must also be observed, before quitting this subject,
(l) Magee v. Atkinson, 2 M. & W. (33 E. C. L. R.) 440; Jones v. Littledale, 6 A. & E. (33 E. C. L. B.) 486. See also Neilson v. James, 9 Q. B. D. 546; 51 L. J. (Q. B.) 369.
(m) Clayton v. Gregson, 5 A. & E. (31 E. C. L. B.) 302; Smith v. Wilson, 3 B. & Ad. (23 E. C. L. B.) 728.
(n) Hutchinson v. Bowker, 5 M. & W. 535; Neilson v. Harford, 8 M. & W. 806.
Baltimore Building Co. v. Smith, 54 Md. 203; Callmeyer v. Mayor, 83 N. Y. 116; Kreiter v. Bomberger, 82 Pa. St. 59. In Clapp v. Thayer, 112 Mass. 296, it was left to the jury to say whether a contract for "about 400 castings" was substantially complied with by delivery of 331 castings. The words "not less than" amount to a contract that the delivery shall not fall short of the specified quantity : Leeming v. Snaith, 16 Q. B. 275.
It seems hardly necessary to say that before the application of these rules arises, the writing to which they are to be applied must really be a complete contract. But, in fact, considerable nicety of judgment has been found requisite upon the question *whether in fact such contract does exist. Thus, where in a printed catalogue of articles to be sold by auction, a dressing case was described as having silver fittings, but at the sale the auctioneer stated, in the defendant's hearing, that the catalogue was incorrect in describing the fittings as silver, and it would be sold as having plated fittings, but no alteration was made in the catalogue: in an action for the price, it was proposed to prove what the auctioneer had said, but this was objected to, as attempting to vary by parol a written contract. But the Court considered the evidence to be unobjectionable, as in fact the auctioneer declined to sell by the printed particulars, and the contract of sale was altogether oral (p). And again, where goods were ordered by letter which did not mention any time for payment, and the goods were accordingly delivered with an invoice equally silent upon that point, it was decided that parol evidence might be given that it had been stipulated by the parties that certain credit should be given which was not expired. It will be observed that in this instance the letter and the invoice together did not form a contract, which, indeed, did not exist until the goods
(o) Lewis v. Marshall, 7 M. & G. (49 E. C. L. R.) 729; Baxter v. Nurse, 6 M. & G. (46 E. C. L. R.) 935.
(p) Eden v. Blake, 13 M. & W. 614. 84 were delivered, and consequently no rule was violated in receiving evidence that credit had been stipulated for. "The documents in question," said Alderson, B., "are not a contract, but are writings *out of which, with other tilings, a contract is to be made. The question then is, whether the defendant has not a right to adduce evidence, not to contradict the written instruments, but to show the real contract of which the paper contains only one of the terms. In order to do that, the defendant must resort to the previous conversation" (q). This rule has been well illustrated by a more recent case, in which a tradesman having in an invoice described himself as a seller of certain goods, it was attempted to sue him for a deficient delivery and improper packing of the goods, in consequence of which they became deteriorated on a voyage. He was, it was strongly argued, estopped by his invoice from saying that he was not the seller of the goods. But he was allowed to prove that the goods were bought by the plaintiffs from another person, and were included by the defendant in his invoice at the plaintiffs' request, and for their convenience, for the purpose of enabling them to pay the price with greater facility. "No doubt," said the Chief Baron, "an invoice is in some cases very strong, and the strongest possible, evidence of a contract. But here the actual contract was made before the invoice was contemplated, and therefore it would not alter the original terms of the contract. In many cases it may be part of the *contract, but here the actual contract was a verbal one" (r).
The other point to which I alluded, as constituting an important practical distinction between simple contracts by mere words and simple contracts in writing (s) is, that there are several matters, which, although they are capable of becoming the subjects of /Simple Contract, cannot, nevertheless, be contracted for without writing, so as to give either party a right of action on such contract.
(q) Lockett v. Nicklin, 2 Ex. 93; Stones v. Dowler, 29 L. J. (Ex.) 122. See Jeffery v. Walton. 1 Stark. (2 E. C. L. R.) 267.
(r) Holding v. Elliott, 29 L. J. (Ex.) 134. See also Malpas v. London & S. W. Rail. Co., L. R. 1 C. P. 336; 35 L. J. (C. P.) 166, commenting on Jeflery v. Walton, 1 Stark. (2 E. C. L. R.) 267.
By far the most important class of contracts subject to this observation are those falling within the enactments of the Statute of Frauds. And these are of such very constant recurrence in practice, that it will be right to devote some time to their consideration.
The Statute of Frauds was passed in the twenty-ninth year of the reign of Charles II., and is the 3d cap. of the statute-book of that year. It is said to have been the joint production of Sir Matthew Hale, Lord Keeper Guilford, and Sir Leoline Jenkins, an eminent civilian. The great Lord Nottingham used to say of it, "that every line was worth a subsidy," 1 and it might now be said with truth, that every line has cost a subsidy, for it is universally admitted that no *enactment of any legislature ever became the subject of so much litigation. Every line, and almost every word of it has been the subject of anxious discussion, resulting from the circumstance that the matters which its provisions regulate are those which are of everyday occurrence in the course of our transactions with one another.1