Parol evidence where writing Upon the same principle, the verbal declarations of an auctioneer at the time of sale are not admissible in evidence, for the purpose of varying, or adding to, or explaining the printed conditions of sale. (1) Thus, where the conditions described only the number and kind of timber trees to be sold by lot, but said nothing as to the weight of the timber, the defendant, in an action for not completing his purchase according to the conditions, was not allowed to prove, that the auctioneer at the sale had warranted the quantity of timber to amount to a certain weight, and the Court of King's Bench was of opinion, that this evidence had been properly rejected. (2) Lord Ellenborough said, "the purchaser ought to have had it reduced into writing at the time, if the representation, then made as to the quantity, swayed him to bid for the lot. If the parol evidence were admissible in this case, in what instance might not a party by parol testimony superadd any term to a written agreement?-which would be setting aside all written contracts, and rendering them of no effect. There is no doubt that the warranty as to the quantity of timber would vary the agreement contained in the written conditions of sale." Where, however, a writing evidently appears to express appears incom- only some parts of an agreement entered into between the plete. parties, parol evidence, it seems, would be admissible to prove the other parts of the agreement on which it is silent; as, for example, if there were a written order to make a chattel, parol evidence would be admissible of the acceptance of the order, and of the price, at which the other party agreed to make it. (3) In the case of Jeffery v. Walton, (4) an action was brought against the defendant for not taking proper care of a horse he had hired of the plaintiff'; at the time of the hiring, the follow Jeffery v. (1) Gunnis v Erhart, 1 H. Bl. v. Winchester, 1 Ves. & Beam. nett, 5 C. & P. 48. (2) Powell v. Edmunds, 12 East, 6. (3) See Ingram v. Lea, 2 Campb. 521. At the time this case was decided, such a contract was not required by any statute to be in writing. (4) 1 Stark. N. P. C. 267. ing memorandum was made:-"Six weeks at two guineas, William Walton, junr." Lord Ellenborough held, that parol evidence was admissible, that the defendant, at the time of the hiring, agreed to be responsible for all accidents. Lord Ellenborough said, "The written agreement merely regulates the time of hiring and the rate of payment, and I shall not allow any evidence to be given by the plaintiff in contradiction of these terms, but I am of opinion, that it is competent for the plaintiff to give in evidence suppletory matter as part of the agreement." (1) It must be observed, that Lord Ellenborough considered this memorandum binding as an agreement as far as it went, holding it conclusive upon the terms of which it spoke. In the case of Knapp v. Harden, (2) in an action for goods sold and delivered, the defence was, that the credit had not expired; it appeared in evidence, that the plaintiff had written a letter to the defendant, specifying the price to be charged; it was sent to the defendant's surveyor, who communicated it to him: the defendant wrote to the plaintiff, that he consented to the terms proposed, if the payment should be made at a period he mentioned: the plaintiff consented, and the defendant then signed the first letter. (3) It was objected, that the first letter alone constituted the agreement, and that the evidence of the second letter, and of what passed in relation to it, were inadmissible. The objection having been overruled, the defendant had a verdict, and on a motion for a new trial the Court of Exchequer refused a rule, and Parke, B., said, "It is quite clear, that the letter did not in itself constitute an agreement, it was not meant to be so by the parties." (4) (1) The plaintiff had a verdict, which does not appear to have been questioned by any motion for a new trial. (2) Exch. H. T. 1835, reported 1 Gale, 47. (3) Alderson, B., appeared to have considered the signature as affixed merely for the purpose of identification, but if so, the party thereby admitted that it was in tended to bind him as to the terms expressed therein. (4) And see Reay v. Richardson, 2 Cr. M. & R. 427, in which, on an application to a creditor to enter into a composition, he was requested to write down what he was willing to do; he afterwards wrote, "I hereby agree, on payment of 10s. in the pound, to give a full and complete discharge;" it was Subsequent variations of terms. Statute of When an existing written contract, or obligation upon the parties, is once proved, questions may arise as to the admissibility of evidence to shew that the parties have subsequently consented to vary it. Such evidence is not open to the objection which is made to contemporaneous parol evidence, namely, that it is offered in opposition to that written evidence, to which, by the policy of the law, a greater degree of weight is attached than to the uncertain and slippery memory of witnesses. In general such evidence of a subsequent alteration of the terms of a written agreement is receivable in evidence. Where, however, the parties have defined the terms by a writing under seal, (which must be taken to be made with great care and formality,) the policy of the law will not permit it to be altered by matter of a lower nature. (1) The common law of England recognised only two modes of expressing the obligations made between parties—by deed, and by parol. Under the latter head are comprised not only oral stipulations, but also those which are made by writing not under seal; and the common law allows written contracts not under seal to be varied by parol, if the variation be made subsequent to the writing, and not offered as contradictory to it but consistent with it. (2) The statute law, particularly the Statute of Frauds, has introduced a considerable alteration, and made written evi held, that evidence of a contempo- (1) Nihil tam conveniens est na- 344. (2) A simple contract, whether in writing or not, may be varied in its terms by a subsequent parol agreement entered into before the breach of it, without any new consideration. Vin. Abr. Contract, 17, but after it is broken, it cannot be discharged without satisfaction, for by the breach there is a wrong done to the party, which the words cannot release without satisfaction; but before the breach, no injury was done to either party, nor any of them injured by such a discharge," ib. After a breach there must be a new consideration to set up a new agreement in substitution of the one that was broken. dence necessary in certain cases, in order to guard against the frauds and perjuries to which oral evidence is always subject, and peculiarly so in those cases to which the statutory regulations apply. It seems, it would now be considered to be the object of the statutes, which make writing necessary to the validity of certain contracts, that all oral evidence as to them should be excluded, and that they must be proved by writing only. (1) In the case of Goss v. Lord Nugent, (2) it was decided Goss v. Nugent. upon this principle, that when a written contract had been entered into concerning land which was required by the Statute of Frauds to be in writing, parol evidence was inadmissible to shew, that some of the terms had been altered or dispensed with by a subsequent parol agreement. By an agreement in writing, the plaintiff contracted to sell to the defendant several lots of land for the sum of 450l., and to make a good title to them, and 80%. was paid to him as a deposit. It was afterwards discovered, that as to one of the lots, a good title could not be made; and it was then subsequently agreed by the defendant, that he would waive the necessity of a good title being made as to that lot, and the plaintiff afterwards delivered possession of the whole of the lots to the defendant, which he accepted, but refused to pay the remainder of the purchase money; he relied upon the objection to the title. The Court, after taking time to consider, delivered an elaborate judgment, that the defendant was not bound by the parol evidence of one of the terms of the written contract. The Court said, "We think the object of the Statute of Frauds was to exclude all oral evidence as to contracts for the sale of lands, and that any contract, which is sought to be enforced, must be proved by writing only. But in the present case, the written contract is not that which is sought to be enforced, it is a new contract which the parties have en Harvey v. Total discharge of a writing by parol. Contracts within Statute of Frauds. Goss v. Lord tered into, and that new contract is to be proved partly by the former written agreement, and partly by the new verbal agreement; the present contract, therefore, is not a contract entirely in writing." In the case of Harvey v. Grabham, (1) it was decided, that the same principle applies to a case in which oral evidence is offered to shew a variation of a part of a contract relating to an interest in lands, though that part "might have been good of itself without writing." With the exception of the class of cases in which the common law has been varied by statute, the observations, above made as to a variation of a written contract, apply to a total dissolution of it. Where an instrument has been made under seal, it cannot be dissolved by matter of an inferior nature. But in general, when an obligation is not created by writing under seal, and is made merely by simple contract, it may, whether written or not, be totally dissolved, at any time before breach, by an oral agreement. As to those contracts, to the validity of which a writing is made necessary by the Statute of Frauds, it does not appear to have been expressly decided, though there seems to be little room to doubt, that oral evidence of a complete discharge of them is admissible. In delivering judgment in the case of Goss v. Nugent, (2) the Court of King's Bench said, with reference to this point, "It is to be observed, that the statute does not say in distinct terms, that all contracts or agreements, concerning the sale of land, shall be in writing; all that it enacts is, that no action shall be brought unless they are in writing; and as there is no clause in the act which requires the dissolution of such contracts to be in writing, it should rather seem that a written contract concerning the sale of lands may still be waived, and |