inadmissible, than even in cases at common law, to contradict or vary the terms of the written contract. The principles by which such contracts are construed have been considered at length; and it is therefore unnecessary to prolong this chapter by a more elaborate treatment of them (z). It will be remembered that the rule, to which this chapter has been given, applies only to cases where the written or oral evidence, which it is desired to couple with the principal writing, is repugnant to the terms of the latter. It does not apply to antecedent, collateral or subsequent agreements, which are not manifestly inconsistent and irreconcilable with the principal writing; or which, in the case of writings not under seal, may be regarded as a partial rescission, and not a mere waiver, of the original contract. (2) Supra, p. 513, and see Goss v. Lord Nugent, 5 B. & Ad. 58; Stead v. Dawber, 10 A. & El. 17. CHAPTER X. ON THE ADMISSIBILITY OF EXTRINSIC EVIDENCE TO EXPLAIN WRITTEN EVIDENCE. THE second branch of the principle of evidence, which was discussed in the preceding chapter, is contained in the rule that extrinsic evidence is admissible to explain written evidence (a). First, parol evidence is admissible to prove that that which purports to be a deed or writing of a certain kind has been made under circumstances which deprive it of all such effect. Thus it may be shown that a written instrument purporting to be a contract between the parties was not so intended (b), or that it was made subject to a condition through the non-fulfilment of which no contract has ever arisen (c); and on the same principle Sir J. Wilde held that it might be shown that a duly executed codicil was not intended by the testator to be operative (d). So it may be shown that an instrument, which appears to be a binding one to take effect immediately, was delivered as an escrow, and was not intended to operate until (a) For the Law in India see the judgment of Peacock, C. J. in Kashinath Chakravarthi v. Chand Churn Banargi, v. W. R. (Civ. Rul.) 68. (b) Rogers v. Hadley, 2 H. & C. 227. (c) Pym v. Campbell, 6 E. & B. 370; Thomas v. Clarke, 18 C. B. 662. (d) Lister v. Smith, 3 S. & T. 282. certain things were done (e); and if an oral arrangement was made as a mere suspension of a written agreement, it will be admissible in evidence (ƒ); and, on the same principle, when an agreement does not declare the time from which and to which it is to operate, parol evidence is receivable to supply the ambiguity (g). Similar evidence may be given to show on which of two counts of a Nisi Prius record damages, which have been entered generally, were actually recovered (h). Evidence is admissible to show that immediately before the written agreement was signed a distinct oral arrangement was made, adding to, but not inconsistent with, the former (i). Whether the oral agreement precede or be contemporaneous with the written agreement is of no consequence, provided it be on a distinct collateral matter (k). Thus a consignor of goods may prove any additional contract which does not contradict or vary the written one (1). The law recognises, according to the authority of Lord Bacon, two kinds of ambiguity in written instruments, viz., patent and latent. A patent ambiguity is said to exist when the instrument, on its face, is unintelligible, as where a devise is made, and a blank appears in the place of the name of the devisee. In such a case, extrinsic evidence is wholly inadmissible to show who was intended to be the devisee (m); for, (e) Davis v. Jones, 17 C. B. 625. (f) Wallis v. Littell, 11 C. B. N. S. 369; cf. sup. p. 524. (g) Davis v. Jones, 17 C. B. 625. (h) Preston v. Peeke, E. B. & E. 336. (i) Lindley v. Lacey, 17 C. B. N. S. 578. (k) Per Erle, C. J. ibid. (1) Malpas v. London and South-Western Railway, H. & R. 227. (m) Indian Succession Act, 1865, s. 68. if it were admissible, it would be tantamount to permitting wills to be made verbally, and would also be a violation of the principle, that where a contract, or other substantial matter of issue, has been reduced to writing, the writing is the only admissible proof of such contract or transaction; but intrinsic evidence is admissible in the case of patent ambiguities (n). Where a written instrument is intelligible on its face, but a difficulty arises from extrinsic circumstances in understanding and carrying out its terms, the ambiguity is said to be latent, and extrinsic evidence will be strictly admissible to explain and apply those circumstances, so as to reconcile them to the terms of the writing. Such evidence, however, is admissible only to explain, and not to vary. Thus, in Goldshede v. Swan (0), Parke, B., said: "You cannot vary the terms of a written instrument by parol evidence that is a regular rule; but if you can construe an instrument by parol evidence, when that instrument is ambiguous, in such a manner as not to contradict, you are at liberty to do so." The leading principles of this general rule will now be considered under those subdivisions which occur most frequently in practice. 1. Where a written instrument is in a foreign language, or where it contains technical words of trade or custom, the ambiguity will be treated as latent; and oral or other extrinsic evidence will be received to inform the court of the sense of the instrument. (n) Edmunds v. Waugh, 4 Drew. 275. P. A A Thus, in Shore v. Wilson, Parke, B., said: "I apprehend that there are two descriptions of evidence which are clearly admissible for the purpose of enabling a court to construe any written instrument, and to apply it practically. In the first place, there is no doubt that not only when the language of the instrument is such as the court does not understand, it is competent to receive evidence of the proper meaning of that language, as when it is written in a foreign tongue; but it is also competent where technical words or peculiar terms, or, indeed, any expressions are used, which at the time the instrument was written had acquired an appropriate meaning, either generally or by local usage, or amongst particular classes. . . This description of evidence is admissible in order to enable the court to understand the meaning of the words contained in the instrument itself, by themselves, and without reference to the extrinsic facts on which the instrument is intended to operate" (p). Accordingly, extrinsic evidence was received in this case to explain the meaning of the phrase, "Godly preachers of Christ's Holy Gospel," and to show that, according to the usage of a sect to which the grantor belonged, the grant was intended for that sect. So, such evidence has been received to explain the meaning of the phrase "across a country" in a steeplechase transaction (7); that "close," by local usage, signified "a farm" (r); that "a thousand" means a hundred dozen (s); that a contract to pay an actor so (p) 9 Cl. & Fin. 555. (q) Evans v. Pratt, 3 M. & G. 759. (r) Richardson v. Watson, 4 B. & Ad. 799. |