No. 3135. Book 4, tit. 8, chap. 11, sec. 3, § 3, div. 1, art. 3. No. 3135. they were genuine. Further evidence will of course be required to be given, aliundè, of the identity of the party, if the witness is not personally acquainted with him. 3. 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 handwriting. 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. (a) Whether papers irrelevant to the record can be admitted, for the sole purpose of creating a standard of comparison of handwriting, does not appear to be settled.(b) (2.) Proof of the instrument when it is not produced. 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 (a) Doe v. Sackermore, 5 Ad. & Ell. 703, 734. (b) 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 Cowen, 94, 112; Titford v. Knott, 2 Johns. Cas. 210; Rowt v. Kile, 1 Leigh's R. 216; The State v. Allen, 1 Hawks, 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 handwriting. Homer v. Wallis, 11 Mass. 309; Moody v. Rowell, 17 Pick. 490; Richardson v. Newcomb, 21 Pick. 315; Hammond's case, 2 Greenl. 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 handwriting is already in the cause, and for the purpose of turning the scale, in doubtful cases. Myers v. Toscan, 3 N. Hamp. 47; The State v. Carr, 5 N. Hamp. 367; Boman v. Plunkett, 3 McC. 518; Duncan v. Beard, 2 Nott & McC. 401. In Pennsylvania the admission has been limited to papers conceded to be genuine. McCorkle v. Binns, 5 Binn. 340; Lancaster v. Whitehill, 10 S. & R. 110. No. 3136. Book 4, tit. 8, chap. 11, sec. 3, § 3, div. 1, art. 3. No. 3137. possession of the opposite party, after notice, it has not been produced, in general secondary evidence of its existence will be received. 3° Of the effect of private writings when proved. 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, that 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. But 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. 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.(a) 3137. There are two sorts of ambiguities of words, ambiguitas latens, and ambiguitas patens. (a) See, as to ambiguity, Bac. Max. 23; 1 Phil. Ev. 410 to 420; 3 Stark. Ev. 1021; Sugd. Ven. 113; Dig. 22, 1, 4; Dig. 45, 1, 8; Dig. 50, 17, 67. No. 3137. Book 4, tit. 8, chap. 11, sec. 3, § 3, div. 1, art 3. No. 3137. 1. 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. 2. 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. (a) 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.(b) 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; (c) 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. (a) In Pennsylvania this doctrine is somewhat qualified. Lessee of Dinkle v. Marshall, 3 Binn. 587. (b) See 1 Greenl. § 298; Wigr. on Wills, p. 174, n. 200, 201. (c) Doe v. Allen, 8 T. R. 147. No. 3138. Book 4, tit. 8, chap. 11, sec. 3, § 3, div. 1, art. 3. 3140. 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 afterward, 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 the last contract. (a) 3. Of shop books, and other mercantile books. 3139.-1. 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 by the party himself, 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, 1, the requisites of such entry; 2, the manner of proving it; and, 3, its effect when proved. 1° Of the requisites of an original entry. 3140. To make a valid original entry, it must possess the following qualities : 1. It must be made in a proper book. In general, the books in which the first entries are made, belong (a) Munroe v. Perkins, 9 Pick. 298. See Lattimore v. Harsen, 14 John. No. 3140. Book 4, tit. 8, chap. 11, sec. 3, § 3, div. 1, art. 3. No. 3140. ing to a merchant, tradesman or other person, (a) 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 handwriting. 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 explained. (b) 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.(c) 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 (a) 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, schoolinasters, etc., not being allowed. Geter v. Martin, 2 Bay, 173; Pelzer v. Cranston, 2 McCord, 328; Boyd v. Ladson, 4 McCord, 76. (6) Churchman v. Smith, 6 Whart. 106. (c) Rodman v. Hoops, 1 Dall. 85; Thomas v. Dyott, 1 N & McC. 106; Cogswell v. Dolliver, 2 Mass. 217; Swing v. Sparks, 2 Halst. 59; Gale v. Norris, 2 McLean, 469. |