§ 2. Evidence as to /act cf Agreement.

Thus far we have dealt with the mode of bringing a

document, purporting to be an agreement, or part of an

agreement, before the Court. But extrinsic evidence -is

admissible to show that the document is not in fact a valid

agreement, or that it is not the whole of an agreement.

It may be shown that incapacity of one of the parties, want

of genuine consent, or illegality of object made the agreement

of the parties unreal, or such as the law forbids to be carried

into effect. In the case of a simple contract it may be shown,

where the promise only appears in writing, that no considera-

Per Aidenon. tiou was givcu for tho promise. Such evidence is constantly

l'(l!^:sc R. admissible to contradict the presumption of value given for a

* bill of exchange o^ promissory note. But this must be dis-

tinguished from evidence which may be given as to the total

See Part V. failurc of oousideration promised, for this is a mode of

ch. iii. s. a.

p- 390. discharge.

Chap. I. §a. BULE8 BELATINQ TO EYIDENCB. 23 1

Similarly in the case of a deed, where fraud or undue

influence is alleged, the absence or inadequacy of consideration

may be adduced in derogation of the deed.

But even where none of these circumstances exist, extrinsic Evidence of

evidence may be given to the effect that the document was suspending

made under conditions which show that it was not intended operation

of contract.

to be a contract. It may be proved in the case of a deed in the case

that the delivery was made subject to a condition, and that °^ * ^®^ •

until the condition happened, the deed was never intended to

be operative. Until such time as the condition is fulfilled

the deed remains an escrow, and the terms subject to which see p. 40.

it was delivered may be proved by oral or documentary

evidence extrinsic to the sealed instrument.

And it may be so with a written contract. Evidence may of a simple

contract

be given to the effect that a document purporting to be a

contract is not so in fact. For though apparently absolute

in its terms, it may be dependent upon a condition unex-

pressed in the document, and the terms to which the parties

actually agreed may have been that, until the condition

happened, the written contract was to remain inoperative.

Thus in Fym v, Campbell the defendants agreed to purchase 6 e. & b 37a

from the plaintiffs a portion of the benefits to be derived

from a mechanical invention made by the plaintiff. The

purchase was to be made if one X approved of the invention,

but before this approval had been given they signed a memo-

randum of agreement on the express understanding that they

did BO for convenience only and that the agreement was not

to bind them until the approval of one Abernethie had been

intimated. Abernethie did not approve of the invention.

The plaintiffs nevertheless contended that the agreement was

binding and that the verbal condition was inadmissible in

evidence, because it was an attempt to introduce a new term

into a written contract. But the Court held that the evidence

was admissible, not to vary a written contract but to show

that th&re had neoer been a contract at all. The following is

2^2 iNTEBPRETATION OF CONTBACl*. Part IV.

the judgment of Erie, J. : — ' The point made is, that this is

a written agreement, absolute on the face of it, and that

evidence was adduced to show it was conditional : and if that

had been so it would have been tprong. But I am of opinion

that the evidence sJunved that in fact there was never ctn agree-

ment at aZZ. The production of a paper purporting to be an

agreement by a party, with his signature attached, affords a

strong presumption that it is his written agreement ; and if

in fact he did sign the paper animo contrahendi, the terms

contained in it are conclusive, and cannot be varied by parol

evidence : but in the present case the defence begins one

step earlier: the parties met and expressly stated to each

other that, though for convenience they would then sign the

memorandum of the terms, yet they were not to sign it as an

agreement until Abernethie was consulted. I grant the risk

that such a defence may be set up without ground ; and I

agree that a jury should therefore always look on such a

defence with suspicion ; but, if it be proved that in fact the

paper was signed with the express intention that it should

, not be an agreement, the other party cannot fix it as an

agreement upon those so signing. The distinction in point

of law is, that evidence to vary the terms of an agreement in

pym V. writing is not admissible, but evidence to show that there is

Campbell. . t •

6 E. & B. 374. not an agreement at all w admissible.

Evidence of Evidence too is admissible to show that a document pur-

tary terms, porting to be an agreement is only a portion of that which

was, in fact, agreed upon. This is not at variance with the

rules just laid down. If two parties enter into a contract, and

then for certain purposes put some of its terms into writing,

evidence may be given, not to vary those terms, but to show

that they did not compose the entire contract. An illustration

L. R. 8 ch. 3SX. of this rule is afforded by the caae of Jervis v. Berridge, The

plaintiff agreed to assign to the defendant a contract for the

purchase of lands from M.: the assignment was to be made upon

Chap. I. $ 3. RULES BELATIKG TO EVIDENCE. 233

certain terms, but a memorandum was drawn up for the purpose .

of obtaining a conveyance of the lands from if. to the defendant,

in which, at the request of the latter, nothing was stated but

the assignment, and various terms in favour of the plaintiff

were omitted. The defendant obtained a conveyance of the

lands and afterwards refused to fulfil the terms which were

in favour of the plaintiff. The plaintiff then applied to the

Court of Chancery to get the assignment set aside and a

conveyance of the lands made to him. The defendant set

up the memorandum from which the terms in favour of ihe

plaintiff had been excluded, and contended that the original

agreement being verbal and so unenforceable under 29 Car. II.

c* 3- § 4i ^^6 memorandum, which complied with the terms of

the statute, must prevail. But the Court held that this was

not so : that the memorandum was a * mere piece of machinery Per seibome,

* "^ L. C, at p. 359.

obtaiued by the demurring defendant as subsidiary to and

for the purposes of the verbal a/nd only real agreement under

circumstances which would make the' use of it for any purpose

inconsistent with that agreement dishonest and fraudulent/

Thus we find that extrinsic evidence as to the fact of agree- Summary:

ment is admissible, not only where vitiating elements are

alleged to exist in the formation of the contract, but (i) where

a memorandum of a contract is shown to have been sis:ned pym v. camp.

, ° beU, 6E. &B.

in dependence upon an unfulfilled condition, and without the 374.

aninvas contrahendi ; and (2) where a document is shown to

be only a part of a larger agreement of which some of the J«^is ▼• ^er-

*> *■ 00 ridge, L. R. 8

terms have been reduced to writing for the convenience of the ^^' ^s'-

parties. But these sets of circumstances come alike to the samd

result^ that there has not been such an agreement between the

parties as the document produced would appear to suggest.