The recital of one instrument in another will frequently render the proof of Its execution unnecessary. 101

When the question arises on a collateral issue whether a paper was executed, the contents of which are not involved in the main question, its execution may be proved as an independent fact without producing it.102

3132. When the instrument is produced, and the attesting witnesses cannot be found, the course then is to prove the hand writing of the witnesses, or, at least, of one of them; when this is done, it is in general sufficient to admit the instrument to be read, but this must be accompanied with proof of the identity of the party sued as the person who appears to have executed the instrument.10 The paper has been allowed to be read, in some instances, by proving the hand writing of the person by whom it was executed, on proof of the identity of the person; 104 but it seems, in another case, such proof was not allowed, except where the party could not prove the hand writing of the witness.105

3133. When no one has seen the party execute the instrument, to establish it recourse must be had to the proof of the party's hand writing. Every man's hand is different from the hands of others, and the characters which he forms in writing differ from similar characters formed by others; this is called his hand writing. The hand writing of a person is usually as distinguishable from others as his face differs from those of other men; and when it is proved by a person who knows it, in general it may be relied upon; still, owing to the imperfection of men's judgments, mistakes may easily be made.

In all cases of this kind, where the witness did not see the party write the document, his knowledge must be derived from a comparison of hands. The testimony of the witness is the belief which, upon comparing the writing in question with the recollection of the party's writing in his mind derived from some previous knowledge, he entertains of their similitude. The witness declares his belief in regard to the writing in question; and he may be asked what are the reasons he has for such belief.

3134. There are several modes of acquiring this knowledge of the hand writing of another.

The first is from having seen him write. The proper mode of interrogating the witness is to ask if he knows the hand writing, and next what are the sources of his knowledge, whether he has seen him write, whether frequently or otherwise.106 When he has seen him write frequently, more credit will be likely to be given to him by the jury than if he had seen him write only once, and then only his name; still such evidence, although very light, may be sufficient; 107 and even a mark, which is so much more easily imitated, has been allowed to be proved by a person who had seen the party affix it to other writing upon several occasions.108 This kind of evidence may be perfectly satisfactory, or it may leave the mind in great doubt; like probable evidence, it admits of every possible degree, from the lowest presumption to the highest moral certainty.

Another mode of acquiring a knowledge of a party's hand writing is from having seen letters 109 or other documents purporting to be his hand writing, and

101 See notes to 1 Phillipps, Ev. 89, by Cowen & Hill, note 168.

102 Shoenberger v. Hackman, 37 Penn. St. 87.

103 Whitelock v. Musgrove, 1 Crompt. & M. Exch. 511; Roden v. Ryde, 4 Q. B. 626.

104 Valentine v. Piper, 22 Pick. Mass. 90.

105 Jackson v. Waldron, 11 Wend. N. Y. 178.

106 See Slaymaker v. Wilson, 1 Penn. 216; Moody v. Rowell, 17 Pick. Mass. 490.

107 Garrells v. Alexander, 4 Esp. 37; Lewis v. Sapio, 1 Mood, & M. 39. But see Powell v. Ford, 2 Stark. 164.

108 George v. Surrey, 1 Mood, & M. 516.

VOL. II.-2 D

109 Chaffee v. Taylor, 3 All. Mass. 598.

225

having afterward personally communicated with him respecting them; or acted upon them as genuine, with the consent or approbation of such party; or by such adoption of them by him in the ordinary transactions of life as would induce a reasonable presumption that they were genuine.' Further evidence will of course be required to be given, aliunde, of the identity of the party if the witness is not personally acquainted with him.

110

A third mode has been proposed by first satisfying the witness by some evidence or information other than the means above mentioned that certain papers are genuine, and then desiring him to study them, and, having fixed an exemplar in his mind, he should give an opinion as to whether the paper in question was the party's hand writing. On this point the court were equally divided, and it seems very questionable whether such evidence ought to be received, because if it be proper, documents irrelevant to the issue must be introduced."1 Whether papers irrelevant to the record can be admitted for the sole purpose of creating a standard of comparison of hand writing does not appear to be settled.112

3135. We have already considered the nature of secondary evidence and when it ought to be admitted. In case an original writing has been lost, or if in the possession of the opposite party after notice, it has not been produced, in general secondary evidence of its existence will be received.

3136. When a private writing has been proved, it is to receive such a construction as its words will naturally bear. It must be presumed that when the parties reduced their agreement to writing and used such terms as import a legal obligation, without any uncertainty as to the object or intent of such engagement, they meant the whole contract should be there stated, and that no colloquium or pourparlers between the parties, and that no declarations or conversation at the time it was completed or before, which would contradict, add to, or alter the written agreement should be proved, because they had been abandoned, and therefore no evidence will be allowed for that purpose.113 this rule, that a party is not allowed to give parol evidence to contradict, add to, or alter a written agreement, is confined to the exclusion of evidence of the language of the party, and not to the circumstances in which he was placed, nor to collateral facts.

But

The rule applies to simple written instruments as well as to specialties or contracts under seal. The words are to be understood in their general ordinary sense, but in suits between the parties to the instrument it may be shown by

110 Amherst Bank v. Root, 2 Metc. Mass. 521.

111 Doe v. Sackermore, 5 Ad. & E. 703, 734.

112 In a note to 581, in the first volume of his excellent work on Evidence, Professor Greenleaf says, "In New York, Virginia, and North Carolina, the English rule is adopted, and such testimony is rejected. Jackson v. Phillips, 9 Cow. N. Y. 94, 112; Titford v. Knott, 2 Johns. Cas. N. Y. 210; Rowt v. Kile, 1 Leigh, Va. 216; The State v. Allen, 1 Hawks, No. C. 6. In Massachusetts, Maine, and Connecticut, it seems to have become the settled practice to admit any papers to the jury, whether relevant to the issue or not, for the purpose of comparison of the hand writing. Homer v. Wallis, 11 Mass. 309; Moody v. Rowell, 17 Pick. Mass. 490; Richardson v. Newcomb, 21 Pick. Mass. 315; Hammond's Case, 2 Me. 33; Lyon v. Lyman, 9 Conn. 55. In New Hampshire and South Carolina, the admissibility of such papers has been limited to cases where other proof of hand writing is already in the cause, for the purpose of turning the scale in doubtful cases. Myers v. Toscan, 3 N. H. 47; The State v. Carr, 5 N. H. 367; Boman v. Plunkett, 3 M'Cord, So. C. 518; Duncan v. Beard, 2 Nott & M'C. So. C. 401. In Pennsylvania, the admission has been limited to papers conceded to be genuine. McCorkle v. Binns, 5 Binn. Penn. 340; Lancaster v. Whitehill, 10 Serg. & R. Penn. 110.

113 Fitch v. Woodruff Iron Works, 29 Conn. 82; Jungerman v. Bovee, 19 Cal. 354; Howard v. Thomas, 12 Ohio, St. 201; Downie v. White, 12 Wisc. 176; Rennell v. Kimball, 5 All. Mass. 356; Forbes v. Waller, 25 N. Y. 430; Oiler v. Bodkey, 17 Ind. 600; Robinson v. Magarity, 28 Ill. 423; Morrison v. Lovejoy, 6 Minn. 319.

114

evidence of the circumstances or by experts that a different special meaning was given to the terms used. The recital of the date in a deed is only presumptive evidence of the actual date of execution, and may be rebutted by proof.115

3137. The courts find but little difficulty in construing written contracts and other written documents when they are expressed in clear and distinct terms, and in such case they will not admit parol evidence to contradict, alter, or add to the written document; owing to ignorance or the imperfection of language there are, however, too often clauses in written contracts and wills that may bear several meanings. In these cases it is said there is ambiguity.'

116

There are two sorts of ambiguities of words: ambiguitas latens and ambiguitas patens.

The first occurs when the deed or instrument is sufficiently certain and free from ambiguity, but the ambiguity is produced by something extrinsic, or some collateral matter out of the instrument. For example, if a man devise his property to his cousin Peter, and he has two cousins of that name, in such case parol evidence will be received to explain the ambiguity. Here it is to be observed the ambiguity arises out of the paper itself; it is latent or concealed, and for this reason it may be explained by parol.

A patent ambiguity occurs when a clause in a deed or other instrument is so defectively expressed that a court of law, which has to put a construction on the instrument, is unable to collect the intention of the party. In such case evidence of his declarations cannot be admitted to explain his intention, and the clause will be void for uncertainty." But it is to be remembered that an instrument is not to be considered ambiguous because an ignorant or uninformed person is unable to interpret it; and when words of art or science are used, the judge, in order to understand the writing, must know those terms. It is for this reason, among others, that all the lights afforded by the collateral facts and circumstances are allowed to shine upon the case, and that they may be proved by parol.118

But though the rule, that no parol evidence can be given to contradict, add to, or alter a writing, be firmly established, yet it must be understood with this qualification, that such evidence may be adduced to show fraud or mistake; 119 and courts of equity constantly admit evidence to contradict or vary a writing, when it is founded on a mistake of material facts, and it would be unconscionable or unjust to enforce it against either party, according to its expressed

terms.

3138. The rule which forbids parol evidence to be given to contradict, add to, or alter a writing, applies only to agreements made anterior to the writing. New and distinct agreements upon a new consideration may be made to change such written contract, and therefore they may be proved without infringing the rule; as, where a man agreed in writing to build a house for another, and after

114 Peisch v. Dickson, 1 Mas. C. C. 11; Stone v. Hubbard, 7 Cush. Mass. 595; Myers v. Walker, 24 Ill. 133.

115 Banning v. Edes, 6 Minn. 402; Partridge v. Swazey, 46 Me. 414.

116 See, as to ambiguity, Bacon, Max. 23; 1 Phillipps, Ev. 410 to 420; 3 Starkie, Ev. 1021; Sugden, Ven. 113; Dig. 22, 1, 4; Dig. 45, 1, 8; Dig. 50, 17, 67.

117 McNair v. Toles, 5 Minu. 435. In Pennsylvania this doctrine is somewhat qualified. Dinkle v. Marshall, 3 Binn. Penn. 587.

118 See 1 Greenleaf, Ev. 298; Wigram, Wills, p. 174, n. 200, 201; Smith v. Clayton, 5 Dutch. N. J. 357.

119 Doe v. Allen, 8 Term, 147; Pierson v. McCahill, 21 Cal. 122; Lull v. Cass, 43 N. H. 62. Thus one may show that he signed an agreement with an understanding that it was not to be binding until signed by others who have not signed. Holmes v. Crossett, 33 Vt. 116. But see Black v. Shreve, 2 Beasl. N. J. 455.

ward, finding he would be a loser, he refused to go on unless his employer would agree to give him a further sum, which he promised to do by parol, and he then went on. The builder was allowed to recover in assumpsit upon

last contract.12

120

the

It is also held that where an oral contract is made and afterward reduced in part to writing, the oral contract is not all merged in the writing, but may be shown by parol evidence.121 And evidence is admissible to prove agreements as to matters collateral to and not included in the written agreement." 122 Under this head come the cases which hold that parol evidence is admissible to show a deed absolute on its face to be in fact a mortgage.123

A receipt is only prima facie evidence of payment, but where it also contains a contract, it is conclusive as to the contract, though not as to the payment or receipt.124 A familiar instance of this is found in bills of lading.12

3139. Though a shop book, which contains an account of the daily transactions of a merchant or mechanic, or other person, of the sale of goods, or of work and labor done for him, is made without the concurrence of the party to be charged, yet when the entries have been properly made, in a proper book, at the right time, they are received in evidence to prove the sale and delivery of goods, and the performance of work and labor.

None but an original entry so made will be received in evidence. Let us now examine the requisites of such entry; the manner of proving it; and its effect when proved.

3140. To make a valid original entry it must possess the following qualities:

It must be made in a proper book. In general, the books in which the first entries are made, belonging to a merchant, tradesman, or other person,126 in which are charged goods sold and delivered, or work and labor done, are received in evidence, though made by the party himself, when such entries are proved by the suppletory oath of the person who made them, or, in his unavoidable absence, by proof of his hand writing. This evidence, when the books are proved by the party himself, is received as part of the res gesta, the entry being a contemporaneous act with the transaction.

To be received in evidence the book must be a book of original entries, kept by the plaintiff himself, to register his affairs, and must have the appearance of fairness, for upon being inspected by the court if it do not appear to be a register of the daily business of the party, and to have been honestly made, it will be excluded. If it appear to have been fraudulently altered in any material part, it will not be admitted, or if so altered without fraud, such alteration must be

120 Monroe v. Perkins, 9 Pick. Mass. 298. See Lattimore v. Harsen, 14 Johns. N. Y. 330. Any oral agreement may of course be discharged orally, and evidence of such facts is admissible. And a condition in a deed may be waived by parol. Leathe v. Bullard, 8 Gray, Mass. 545; Lawrence v. Dole, 11 Vt. 549. Where a contract is required by the statute of frauds to be in writing, it would seem to be incompetent to show a new agreement varying its terms without writing. Adler v. Friedman, 16 Cal. 138.

121 Crane v. Elizabeth Ass. 5 Dutch. N. J. 302; Winn v. Chamberlin, 32 Vt. 318.

122 Keough v. McNitt, 6 Minn. 513; Kieth v. Kerr, 17 Ind. 284; McKee v. Boswell, 33 Mo. 567. Johnson ".

123 Plato v. Roe, 14 Wisc. 453; Roberts v. McMahan, 4 Greene, Iowa, 34; Sherman, 15 Cal. 287; Howard v Odell, 1 All. Mass. 85.

124 Dale v. Evans, 14 Ind. 288, Brown v. Brooks, 7 Jones, No. C. 93; Sencerbox v. McGrade, 6 Minn. 484.

125 Tuskar, 1 Sprague, Dist. Ct. 71.

126 In some states the books thus admitted in evidence are restricted to those of shopkeepers, mechanics, and tradesmen; those of other persons, such as planters, scriveners, schoolmasters, etc., not being allowed. Geter v. Martin, 2 Bay, So. C. 173; Pelzer v. Cranston, 2 McCord, So. C. 328; Boyd v. Ladson, 4 id. 76.

explained.127 If the books appear to be fairly made, it is immaterial whether they are made in the form of a journal, day book, or ledger.128

There are many books which are not books of original entries, and consequently cannot be received in evidence, although entries charging persons with goods sold and delivered to them, or for work and labor performed at their request; a few of these will be enumerated. A book made by transcribing entries made on a slate by a journeyman, the transcript being made sometimes on the same evening, at other times not until nearly two weeks after the work was done, was considered as not a book of original entries; 129 and unconnected scraps of paper, containing entries of sales by an agent on account of his principal, and appearing on their face to be irregularly kept, are not to be considered as a book of original entries.130

The entry must have been made in proper time, and in the course of business, and with an intention of making a charge for goods sold and work done; and they ought not to be made after the lapse of one day.131 A charge made at the time when the goods were ordered and before delivery in a book which was kept for that purpose, is not sufficient, although when the goods were delivered there was a mark made to indicate such delivery.132 There is one class of entries which derive all their force from the circumstance alone that they were made by the party making them against his own interest, and it is immaterial as to the time when they were made; as, where a man's clerk charges himself in the books of his employer with goods or money received by him on account of his wages.

or

An entry must be made in an intelligible manner, and not in figures or hieroglyphics which are understood by the seller only; 133 and it must not be made in a gross amount, but as goods are delivered or the work is done; charges made in the gross of "one hundred days' work," or "for medicine and attendance," or "thirteen dollars for medicine and attendance on one of the general's daughters," were, therefore, rejected.134 An entry of goods without carrying out any price proves, at most, only a sale, and the jury cannot, without other evidence, fix any price.135 The charges should be specific, and denote the particular work or service charged, as it arises daily, and the quantity, number, weight, or other distinct designation of the materials or articles sold or furnished, and the price or value should be attached to each item."

136

The entry must be made by a person having authority to make it, for if made by a stranger, it would not be evidence of any sale and delivery, or of

127 Churchman v. Smith, 6 Whart. Penn. 106; Caldwell v. McDermit, 17 Cal. 464. 128 Rodman v. Hoops, 1 Dall. 85; Thomas v. Dyott, 1 Nott & McC. So. C. 106; Cogswell v. Dolliver, 2 Mass. 217; Swing v. Sparks, 2 Halst. N. J. 59; Gale v. Norris, 2 McLean, C. C. 469; Wells v. Hatch, 43 N. H. 246. The loss of the original entry book being proved, the ledger, together with copies of papers containing advertisements, are competent to sustain a bill for advertising. Caulfield v. Sanders, 17 Cal. 569.

129

Ogden v. Miller, 1 Browne, Penn. 147. The book is a book of original entry if the items are transcribed from the slate within a reasonable time. Barker v. Haskell, 9 Cush. Mass. 218; Landis v. Turner, 14 Cal. 573. The same rule applies if the entries are made by one person and transcribed by another. Kent v. Garvin, 1 Gray, Mass. 148; Hall v. Glidden, 39 Me. 445.

130

Thompson v. McKelvey, 13 Serg. & R. Penn. 126. See 2 Whart. Penn. 33; Prince v. Smith, 4 Mass. 455; Lynch v. Hugo, 1 Bay, So. C. 33; Wilson v. Wilson, 1 Halst. N. J. 94; Bell v. McLean, 3 Vt. 185.

131 Waller v. Bollman, 8 Watts, Penn. 545.

132 Rhoads v. Gaul, 4 Rawle, Penn. 404.

133 Rhoads v. Gaul, 4 Rawle, Penn. 404.

134 Lynch v. Petrie, 1 Nott & McC. So. C. 130; Hughes v. Hampton, 2 Const. So. C. 476. 135 Hagaman v. Case, 1 South, N. J. 370.

136 2 Bail. So. C. 449; Lynch v. Petrie, 1 Nott & McC. So. C. 130.