marriage may be inferred from the acts and conduct of the parties towards each other.' A defective description of a boundary may be interpreted by evidence of the practical construction the parties put upon it themselves. The acts of the parties may be shown to indicate whether side-tracks were to be computed as road under a contract at a price per mile of road.'

When there is a dispute as to which of two contracts is binding, the parties may be bound by the one they have adopted. Thus when the contractor insisted that the contract consisted of proposals duly accepted, and the company claimed that the contract was an unsigned written construction contract by whose terms the work had been performed, it was held that the written contract should hold."

The rules that a court in construing a doubtful provision of a contract will follow the interpretation placed upon it by the parties does not apply to contracts made by a municipal corporation in matters affecting the public interests; and when a board of commissioners has entered in their proceedings a contract, it is not error to exclude parol evidence of their version of it."

Testimony that the stipulations of a contract were the same as those on a block of printed forms from which it had been taken, is inadmissible. unless it is shown that the witness compared the contract form with those in the block.'

126. Witnesses Cannot Testify as to the Meaning of a Contract.-A witness cannot testify touching the construction of a contract; if a question arise as to its meaning, the question must be settled by the court." Evidence of the opinion of the parties to a contract as to its meaning, not carried into effect by any act, will not govern its interpretation. Parol evidence is admissible to prove the existence of a written instrument, no attempt being made to prove the contents thereof.1o

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When there is a dispute between the parties as to whether the contract was verbal or in writing, and the evidence is conflicting as to whether the contract was verbal or in writing, the question is for the jury." The construction of an ambiguous written contract is for the jury, and a charge as to its meaning is error." Where there is no ambiguity in the terms of a

1 Button v. Hibbard (Sup.), 31 N. Y. Supp. 483; but see Yale v. Curtiss, N. Y. Ct. of App., Feb. 1897.

2 Kingsland . Mayor, etc., of N. Y., 45 Hun (N. Y.), 198.

3 Barker v. Troy, etc., R. Co., 37 Vt. 766. 4 Megrath v. Gilmore (Wash.), 39 Pac. Rep. 131; and see Mobile & B. Ry. Co. v. Northington (Ala.), 10 So. Rep. 839 [1892].

5 National Waterworks Co. v. School Dist. No. 7 (Cir. Ct.), 48 Fed. Rep. 523. Board v. O'Conner (Ind.), 35 N. E. Rep. 1006.

contract, it is the province of the court, and not of the jury, to determine its meaning,' and where the terms are ascertained its meaning presents a question of law only, and it is for court."

It is the duty of the court to construe and determine the legal effect of a written instrument offered in evidence and to instruct the jury thereon,' and there is no ambiguity or conflict if the intention of the parties to a written contract be intelligible upon the face of the instrument. Outside proof of its meaning is not admissible,-its construction is for the court alone.' Whether certain correspondence constitutes a contract, and its proper construction as such, are for the court."

127. The Intention of Parties should Control.-In the construction of instruments or contracts the first rule to be regarded is to follow the intention of the parties as gathered from the entire transaction, and by looking at all the provisions of the instrument, and not one alone.

All other rules are subordinate to this one, and when they contravene it they are to be disregarded. If the language of the contract is plain and unambiguous, parol evidence is not allowable to ascertain the pretext of the parties thereto. If it admits of more senses than one, it is to be interpreted in the sense in which the promisor had reason to suppose it was understood by the promisee. If the terms of the written contract admit of two meanings, one of which nullifies the contract and the other upholds it, the latter will be adopted and the former must be discarded.'

128. Rule against Parol Evidence Applies Only in Suits between the Parties to Contract. The rule that parol evidence cannot be given to contradict or vary written agreements is limited to the parties actually contracting with each other by the agreement. It cannot be evoked by a stranger to a contract. It is not excluded in suits between strangers to the written contract, and a surety has been held such a stranger. Therefore parol evidence is admissible to establish a contract between a broker and his principal though it may contradict or vary the terms of a written contract entered into in pursuance thereof between the principal and the proposed purchaser."

129. Contracts Obtained by Fraud or Duress.-Exceptions to the rule

! Levy a. Kottman (Com. Pl.), 32 N. Y. Supp. 241.

Finlayson . Wiman (Sup.), 32 N. Y. Supp. 347.

Bell. Keepers (Kans.), 14 Pac. Rep. 542 [1887]: Fidelity Title & Trust Co. v. People's Gas Co. (Pa.), 24 Atl. Rep. 339; Barnhill . Howard (Ala.), 16 So. Rep. 1; Woodburg G. Co. v. Mullikin (Vt.), 30 Atl. Rep. 28.

4 Campbell v. Jimenes (Com. Pl.), 23 N. Y. Supp. 333.

5 Scanlan v. Hodges (C. C. A.), 52 Fed. Rep. 354.

6 Potter v. Berthelet, 20 Fed. Rep. 240 [1884]; Root et al. v. Johnson, 26 Vt. 64. 7 Saunders v. Clark, 29 Cal. 299. Coleman Bank of Elmira, 53 N. Y. 388 [1873]; First Nat. Bank v. Dunn (N. J.), 27 Ail. Rep. 908.

917 Amer. & Eng. Ency. Law 454: Coleman v. Bank of Elmira, 53 N. Y. 388 [1873].

10 Barber v. Hildebrand (Neb.), 60 N. W. Rep. 594.

forbidding parol evidence are those cases where the validity of the written instrument is impeached as having been obtained by duress, menace, fraud, or collusion, which, as is well known, vitiate all acts however solemn or even judicial. To reject parol evidence in such cases would afford protection to practices which it is the object of the law to suppress. A party cannot avoid it by setting up his own fraud, nor can other persons claiming under him.'

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If a contract is attacked on the ground of fraud, parol evidence is admissible to show the fraud.' There must be an allegation of duress, collusion, fraud, misrepresentation, or mistake, or the evidence must be offered to prove the same. In the absence of such allegation, parol evidence will not be admitted even in a court of equity. Therefore a contract for the sale of land cannot be varied by prior or concurrent verbal agreement as to what the settler would do in consideration of the purchase; nor when subscriptions have been made to a common project, and the parties soliciting the subscriptions have made parol representations to the effect "that men of great wealth will be connected with the enterprise, that great benefit, collateral improvements, and enhancement of the value of real estate will result, or "that certain materials will be used in the building;" or "that the railroad to be built should connect with other railroads," though the route and termini might be shown. So in a lease it cannot be shown that the landlord made an agreement at the time it was executed to make improvements," or that, under a lease that was to be null and void and not binding on either party if the lessee failed to pay his rent, it was intended to give the lessee an option to terminate the lease at his pleasure."

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If the purchaser had alleged fraud, misrepresentation, or deceit, a court of equity would doubtless have admitted the evidence, as was done in a case where a tenant signed a lease of a farm upon the faith of the owner's parol promise to destroy the rabbits infesting it;" and in another case where an inventor as an expert made false representations to a purchaser as to the value, merits, and utility of an invention." There are cases to the contrary where misrepresentations as to the validity, value and utility are held mere matters of opinion" and therefore not fraudulent. Representations as to

Gerner v. Church (Neb.), 62 N. W. Rep. 51.

Low v. Studebaker (Ind.), 10 N. E. Rep 301 [1887].

Lerch . Sioux City Time Co. (Ia.), 60 N. W. Rep 611.

10 Hall. Phillips (Pa.), 30 Atl Rep.353. 11 Morgan v. Griffith, L. R. 6 Exch. 70 [1871]

12 Hicks v. Stevens (Ill.). 11 N. E. Rep. 241 [1887]. And see note, Best's Chamberlayne's Prin. of Evidence 230; Iowa Economic Heater Co. v. American, etc., Co., 32 Fed. Rep. 735.

138 Amer. & Eug. Ency. Law 636.

facts on which the valuation, merits, etc., are based are fraudulent if false.'

Misrepresentations by a nonexpert as to the legality of an instrument or the legal effect of it are not in general regarded as fraudulent so as to relieve one from the obligation assumed on the strength of such allegation.'

If one is induced to sign a lease by false statements by the owner that the building leased is fit for certain purposes, evidence of the misrepresentation may be received. So when it is alleged that certain stipulations and provisions were inserted in a contract by fraud, evidence of prior conversations between the parties is admissible. In general, when it can be shown clearly and undoubtedly that certain oral representations, undertakings, and promises, material to the subject-matter of a written contract, induced one of the parties to put his name to it, they may be shown by parol evidence, and the written agreement may be modified, explained, reformed, or altogether set aside by such parol evidence. Such a case is a subscription contract in which it was falsely represented that another person named had made a similar subscription under the same conditions."

130. Independent Oral Agreements.-It must not be taken that the rule against showing a prior or contemporaneous parol agreement forbids parties making separate written and parol contracts at the same time and as to the same subject-matter. Any number of independent contracts each having its own proper consideration may be made, some parol and others written, and the parol contracts may modify, explain, vary, contradict, or multiply the written ones. The parol agreement may form part of the consideration. of the written contract, or the written contract may form the consideration for the contemporaneous parol agreement, if the oral agreement ist not inconsistent with the written agreement, and if there is evidence that the parties did not intend the written contract to be a complete transaction.

When oral agreements are made at the time written contracts are entered into, then they should rest upon a separate and distinct consideration; and when they have been arrived at they should be regarded as distinct and collateral agreements, and not a part of the written contract. Parol evidence will be admitted of an oral agreement entered into subsequent to the written contract if the oral contract is supported by a new consideration, and the new parol agreement may become a substitute for the old one, or be an addition to it. If the new oral agreement has taken the place of an earlier written contract which has been lost, oral evidence may also be received to prove the terms of the written contract.

A parol modification of the terms of a written contract, which was

18 Amer & Eng. Ency. Law 636.

? Myers v. Rosenbach, 25 N. Y. Supp 521. Van Alstyne v. Smith, 31 N. Y. Supp. 277.

4 Thudium . Yost (Pa.), 11 A:1. Rep. 436.

Gerner v. Church (Neb.), 62 N. W Rep. 51.

required to be in writing by the statute of frauds, cannot be shown in connection with the written contract.

An interesting case, illustrating this rule, was a written contract for the sale of real estate. One of the provisions was, that a certain person should survey the land. The services of this particular surveyor not being obtainable, a verbal agreement was made to procure another, who surveyed the land, after which the grantor refused to convey the premises. In an action for the breach of the written contract it was held that the verbal alteration could not be shown, because such alteration reduced the whole written contract to a mere verbal agreement for the sale of lands, upon which the statute of frauds provides that no action can be maintained.' However, this does not hold that certain terms of a written contract cannot be waived by parol agreement.**

Oral evidence is admissible to show that the time of performance or completion was extended or the date changed by a subsequent agreement, whether the contract be sealed or unsealed, or even within or without the statute of frauds,' and it may be shown that the terms of a written contract, even one within the statute of frauds, have been waived or discharged.

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131. Subsequent Promises must be Founded upon a Consideration.—A consideration without doubt is necessary to support such contracts to modify or rescind a written contract, but it is not to be understood that by consideration is meant a money consideration. The court will, if possible, find a consideration to support promises for extra work, extension of time, changes in the plans, specifications, etc. If there have been changes by the owner, these may afford sufficient consideration for an extension of time, or for extra remuneration, even though the expense has not been increased. If the contractor has found the work more difficult than he anticipated, it is an easy matter for him to allege misrepresentation on the part of the owner or his engineer or architect, and "trump up" a claim which, however trivial, may afford a consideration for a new agreement on the part of the owner, it being impossible for the court to ascertain how sincere he may have been in his claims or what value it may have had at the time. So when a building fell before it was completed, it being disputed as to whether it was the contractor's or owner's fault, it was held that the question of doubtful liability was a sufficient consideration to support a new promise by the owner.'t

1 Dana v. Henry, 30 Vt. 616 [1858].

* Hill . Blake, 97 N. Y. 216; 17 Amer.

& Eng. Ency. Law 448.

17 Amer. & Eng. Ency. Law 449; Luckart v. Ogden, etc, 30 Cal. 547; Morrill v. Colehour, 82 IL 618.

4 17 Amer. & Eng. Ency. Law 449.

5 Bruce v. Brown (Tex.), 25 S. W. Rep. * See Secs. 559-564, infra,