All conversations and agreements had or made and tending to vary or contradict the provisions of the written contract are inadmissible as evidence to show the meaning or intention of the parties. The written contract must be taken to express the final intention and understanding of the parties. Whether the evidence offered be conversations, correspondence,' or previous oral understandings with regard to the same subject-matter, it is not admissible if the contract be clear and certain in its terms."

If there is any one thing that should be impressed upon the minds of engineers, architects, contractors, and builders alike, as well as upon the minds of owners, officers, and managers, it is the fact that a written contract should be complete. It should contain every term and provision, stipulation and condition that the parties are agreed upon. It should embody every item of prior and contemporaneous agreements that they intend shall be the basis of the contract. It should not only provide for present and existing conditions, but should anticipate every difficulty and controversy that may arise in the execution of the contract or the prosecution of the work. When the contract is made and entered into is the time to insist that all the terms agreed upon shall be incorporated in the written instrument; and for either party to take the word of the other that "this or that is understood," or to be satisfied with the assurance that "we will make that all right," is to sacrifice so much of the consideration.

Every man is presumed to know the effect of a contract which he signs, and he can have no action against the other party for misrepresentations made to him as to its illegal effect; nor will such misrepresentations invalidate the contract. When there is evidence that the contractor read the contract sued on, he cannot be heard to say that he was misinformed by the other parties as to its legal effect."

If the intention of the parties be clea. the court will not look beyond the four corners of the paper for the entire contract, nor will it listen to any testimony as to prior conversations, understandings, correspondence, or promises without there is an independent consideration to support them. It was therefore held that where a contract was silent as to the time of performance of a contract, evidence of a contemporaneous agreement as to when it was to be done could not be received to vary the ordinary legal construction that it was to be performed in a reasonable time. So when a contract has been signed for the insertion of an advertisement in a paper for one

objection. Brady v. Nally (N. Y. App.), 45 N. E. Rep. 547.

Eaton v. Gladwell (Mich.), 66 N. W. Rep. 598.

Bryan v. Idaho Quartz Min. Co. (Cal.), 14 Pac. Rep. 859: Wonderly v. Holmes Lumber Co., 56 Mich. 413 [1885]; Curtiss . Waterloo, 38 Iowa 266 [1874].

38 Am r. & Eng. Ency. Law 636. Nor are false representations as to the validity

of a patent actionable, 8 Amer. & Eng. Ency. Law 636, if the person to whom they are made has the same means of information.

4 Kingman & Co. v. Shawley, 1 Mo. App. Rep'r 281.

Liljengren Far., etc., Co. v. Mend (Minn.), 44 N. W. Rep. 306; Boehm v. Lies, 18 N. Y. Supp. 577.

year at a price named, payable quarterly, it cannot be shown that there was an understanding at the same time that the advertisement could be stopped at any time if it did not suit,' or that it was agreed at the time of signing the contract that the advertisement and cut should be submitted to defendant for his approval. When a contractor has taken work to be completed by a certain time or to be delivered at a certain place, he cannot prove that the completion of the work was to depend on the delivery of certain materials, or on the navigability of certain streams, or that the defendant railroad company was to haul the materials, or that the contract price was one suitable for a rough job only, or that the owner and his engineer had agreed, before the contract was executed, as to the quality of materials and as to a standard for comparison."

The rule against admitting parol evidence to alter or contradict a written contract applies to the signature of the parties as well as to the body of the contract.'

123. When Parol Evidence will be Received.-Parol evidence of a contract is admissible under the following circumstances: 1. To show that there is not and never was a legal contract. This will admit evidence to show that the contract lacked any of the essential elements of a lawful contract, the incapacity of the parties, a want or a failure of the consideration, or that the consideration was illegal or immoral, or that its object or purpose was illegal or against the policy of the law, that the mutual understanding of the parties was not correctly expressed, or that it was not executed or acknowledged as required by law, or was not delivered, or was delivered in escrow or subject to a condition, or that it was obtained by duress, menace, fraud, or collusion, which, as is well known, vitiates all acts, however solemn." 2. To show that the contract, though absolute on its face, was and is subject to a condition precedent to its performance. Such evidence must prove the existence of a separate parol agreement that the obligation should not attach until the condition precedent was performed or the event had transpired. 3. To explain the meaning of technical words and expressions, and to prove the existence of certain customs and usages. In construction work such technical words and phrases are those used in the trades, or by engineers and architects in the practice of their profession; and the customs and usages are those which have grown up in the business, and may consist of certain rules by which

1 Cohen . Jockoboice (Mich.), 59 N. W. Rep. 665.

2 Coleman v. Rung. 31 N. Y. Supp. 456. McNeeley v. McWilliams, 13 Ont. App. 324 [1887].

4 Scott v. Norfolk & W. R. Co (Va.), 17 S E. Rep. 882.

5 Crow v. Becker, 5 Robt. (N Y.) 262. Jones v. Risley (Tex.), 32 S. W. Rep. 1027; Eaton v. Gladwell (Mich.), 66 N. W.

Rep. 598
Other cases see Monroe v. Per-
kins, 9 Pick. 298; Rand v. Mather, 11
Cush. 1; 59 Am. Dec. 131.

Blwrinkle v. Cramer, 3 S. E. Rep. 776 [1887].

Byerstet . Winona Mill Co. (Minn.), 51 N. W Rep. 619 [1892]; 17 Amer. & Eng. Ency. Law 438; Best's Chamberlayne's Principles of Evidence 235.

917 Amer. & Eng. Ency. Law 436.

*

measurements are made and work is estimated.' It is well established that parol evidence will not be received of a usage which is repugnant to the express terms of the contract, though there are cases in which "black" has been shown to mean "white," and in which "one" has been shown to mean "two or more." 4 It may be shown by parol evidence in what character the parties contracted—that one or both were acting in the capacity of an agent, officer, trustee, or administrator. 5. Parol evidence may be received of a prior agreement based upon a sufficient consideration as a defense to a suit for specific performance."

It is the duty of a court to make an agreement effective if possible, and oral evidence will be received to identify, describe, or explain a contract.* If it is incomplete, oral evidence will be admitted to supply matter omitted from the writing where it is apparent from the writing itself that something has been left out. So when a deed conveys "all my real estate" without any other description, evidence will be received to locate the premise3, and to show that the parties of a written lease of "four acres out of lot four" had agreed on certain boundaries thereof."

The facts existing at the time the contract was made, and of the circumstances of the parties, and of the building, may be shown when the question is as to whether a building was to be a two or a three story structure, no plans having been drawn or prepared.' Oral evidence has been admitted to show quantities, and to show that certain plans and specifications not referred to in the contract were submitted to the contractor for his estimate of cost, and that such plans and specifications were modified by subsequent parol agreement. Oral evidence is admissible to identify a prior contract incorporated into, or specifications referred to, in a contract to erect a structure, and when identified they may be considered in connection with the contract to determine whether or no the contract is void for uncertainty.

If the contract and specifications appear inconsistent, such variance may be explained by oral testimony. If the papers when taken together show clearly that the specifications are incomplete, evidence may be admitted to explain them or to supply the parts omitted.1°

If a contract to rebuild a wall fails to show how much of the old wall is to be taken down, it may be shown by parol evidence what was contem

1 Ford r. Beech, L. R. 11 Q. B. 866. Myers . Sarl, 30 L. J. Q. B. 9; Mallan

r. May, 13 M. & W 517.

Se 13 Solicitors' Journal & Rep., pp. 312. 336, 353, and 373.

4 Coleman v. Ma". Imp. Co., 94 N. Y. 2.9: Howard v. Pepper, 136 Mass. 28: Bennett . Pierce, 28 Conn 315; Hildebrand e. Fogle, 20 Ohio 147.

52 Parsons on Cntracts 549, 21 Wend. 652, 13 Peters 89; see also Primey e Thompson, 3 Ia. 74; McKinzie v. Staf

*See Secs. 603-629, infra.

plated by the parties;' also, that stone from a certain quarry were to be used;' as to how payments should be made and the place and time of delivery; as to the meaning of the clause "the entire walls of the building inside and outside are to be painted" when it is claimed and denied that the plastering as well as woodwork is to be painted; to determine how many cubic feet (16 or 25) constitute a perch of stone in a contract. In the the absence of a statute defining a perch, it may be shown that it was verbally agreed at the time of the negotiations that the work was to be performed at 18 cents per cubic foot and that the party who wrote the contract reduced it to $4.50 per perch of 25 feet; such evidence was held not to vary the contract, but to enable the court to interpret it in the sense intended by the parties."

Likewise, oral evidence has been admitted to show what was intended by the words "at the price of two dollars per thousand; "hewn timber to average 120 ft. and to class B, No. 1 Good"; *❝at a price per mile of road whether or not the side tracks were to be measured as road"; "to make up the track in good running order, well surfaced, ties evenly and firmly bedded, etc."--whether or no this required the contractor to fill in the space between the ties with earth or other proper substance."

In general, parol evidence is admissible to show a different or some other consideration than that named in the written contract if it be consistent with that which is expressed and does not defeat the legal operation of the instrument. When the consideration named in a deed is money, it may be shown that the consideration was in fact land of the value named, or that it was marriage," or a promise to do something." Parol evidence has been held admissible to show in what manner the consideration was to be paid, and to show a distinct and collateral agreement which is not a part of the contract embraced in writing.'

12

In every case it should be held in mind that the parol evidence must not be inconsistent with the written terms of the contract. It cannot alter, vary, add to, nor contradict the written contract. The evidence must not change the intention of the parties as expressed in the written instrument, but it may complete it or explain it.

124. Parol Evidence to Explain Obscure and Ambiguous Contracts.Contracts obscure or ambiguous may be made clear and the intention of

Donlin v. Daeglin, 80 Ill. 608 [1875]. Centenary Church . Cline (Pa.), 9 Atl. Rep. 163 [1887].

317 Amer. & Eng. Ency. Law 436; Duplanty v. Stokes (Mich.), 61 N. W. Rep. 1015.

4 Beason v. Kurz (Wis.), 29 N. W. Rep. 230.

Quarry Co v. Clement, 38 Ohio St. 587.
Smith v. Aiken, 75 Ala. 209.

Barker v. Troy, etc., R. Co.. 27 Vt. 766. Western Union R. Co. v. Smith, 75 Ill. 496 [1874].

Wood v. Moriarity (R. I), 9 Atl. Rep. 427, 17 Amer. & Eng. Ency. Law 438. 10 Tolman v. Ward, 86 Me. 303; Miller v. McCay, 50 Mo. 214.

11 Twomey v. Crowley, 137 Mass. 184. 12 Note, Bolles v. Sach (Minn.), 33 N.W. Rep. 862 [1887], cases cited.

*See Secs. 603–629, infra.

the parties brought to light by oral evidence of the surrounding circumstances, the situation of the parties, the subject-matter, the acts, and even the conversation of the parties under it.'

2

Whatever the nature of the writing, the object is to discover the intention of the parties as shown by the words they have used. To this end the court may put itself in the position of the parties and view the surrounding circumstances, to see how the terms of the contract apply to the subject-matter of the contract. Therefore, under a contract for employment of an engineer which is not clear as to the length of the term of service, or the salary to be received, or the kind of work to be undertaken, oral evidence is admissible to show the situation of the parties at the time the contract was entered into, the surrounding circumstances-what position the employee gave up to accept the employment, what duties his predecessor had been required to perform, etc.3

Evidence of the acts, conduct, and declarations of the parties may be given to show their understanding and practical interpretation of contract when the language used by them is indefinite and obscure. Evidence of such subsequent statements and conduct are only competent to show the parties' understanding of it, and do not change its express terms. The conduct has no doubt a great, if not controlling, weight in the interpretation of a contract, but the statements and declarations of the parties are often excluded altogether, whether made before, at the time of, or after the execution of the contract.' Where a telegram and subsequent letters are a part of the negotiations which led up to a contract for the purchase of goods, they are to be construed together in determining the terms of sale." 125. Parties may be Held to the Construction they have Themselves Adopted. Evidence may be received of the construction put upon previous. contracts of the same general character by the parties by their actions; and a subsequent contract with regard to the same subject-matter is admissible to show how the parties understood the earlier contract." The construction of a contract adopted by parties will prevail." A promise of

1 Caperton's Adm'rs v. Caperton's Heirs (W. Va.). 15 S. E. Rep. 257.

Shrewsbury v. Tuffts (W. Va.), 23 S. E. Rep. 692.

Excelsior Needle Co. v. Smith, 61 Conn. 56 [1892]: Marion School Tp. v. Carpenter (Ind.). 39 N. E. Rep. 878; Rogers v. Straub, 26 N. Y Supp. 1066; Rhodes v. Cleveland Roll. Mill Co., 17 Fed. Rep. 406.

411 Amer & Eng. Ency. Law 578: Davis ↑ Shafer (Cir. Ct.), 50 Fed. Rep 764: Engel Scott & Co. (Minn ), 61 N. W. Rep. 825: Leavers v. Clearly, 75 Ill. 349 [1874]; Lyon . Motley. 30 N. Y. Supp. 218

5 Potter . Phoenix Ins. Co. (C. C.), 63 Fed Rep. 382. It is admissible only when

Scraggs v. Hill (W. Va.). 17 S. E. Rep 185; Garnsey Rhodes, 18 N. Y. Supp. 484 [1892]; but see Cunningham v. M. S. & Ft. C. R. Co., where evidence of conversation of parties supplemental to contract was received; and see Hart v Thompson (Sup.), 41 N. Y. Supp. 909.

8 Joseph v. Richardson, 2 Pa. Super. Ct. Rep 208.

People's Natl. Gas Co. v. Braddock Wire Co., 25 Atl. Rep. 749.