4. Memorandum, letter, or agreement made for, or relating to, the sale of any goods, wares or merchandize. Upon this clause it has been determined, that an agreement by the defendant to take a share of some goods, which has been bought by the plaintiff on their joint account, and to pay for them at a certain time, is an agreement relating to the sale of goods, and therefore exempted from a stamp duty; (1) so also is an agreement by a broker to indemnify his principal, for whom be bought goods, from any loss on a re-sale; (2) or a guaranty for the payment of goods, which a third person was about to purchase to a certain amount; (3) or a receipt for the price of a horse containing a warranty of soundness. (4) An agreement for the making of machinery at a fixed price was considered, in the case of Buxton v. Bedall, (5) to be not within the exemption; on the ground, that it is not a contract for, or relating to, the sale of goods, but relating to the making of goods, and for work and labour to be done. (5) The language of the exempting clause, "Memorandum agreement for, or relating to, the sale of any goods, wares, or merchandise," is expressed in terms the most general and comprehensive; and, perhaps, on reconsideration, may be thought to extend to contracts relating to the sale of goods, which are to be made by the seller before their delivery, no less than to contracts for the sale of goods already made. It may be observed further, that the true principle and ground of decision in the case of Towers v. Sir J. Osborne, (on the authority of which the case of Buxton v. Bedall was determined,) does not appear to be inconsistent with such a construction. The Court of (1) Venning v Leckie, 13 East, 7. 212. (4) Skrine v Elmore, 2 Campb. 407. against a new trial. The only judges present were Mr. Just. Lawrence, and Mr. Just. Grose; and they determined the point on the authority of Towers v Sir J. Osborne, a case on the statute of frauds. See ante, p. 377. King's Bench there held, that a contract for a chariot, which a person had bespoke, was not a contract for the purchase of goods, but for the making of something not in existence, and therefore not within the 17th section of the statute of frauds; for that section speaks of acceptance of part of the goods as one of the requisites to bind the bargain, and is supposed therefore not to extend to those cases, in which the subject-matter of the contract is incapable of delivery and of part-acceptance. (1) But in the exempting clause of the stamp-act, nothing is said relative to the delivery of the goods, nor is there any reason for supposing that the legislature intended to make a distinction, with respect to stamping, between contracts for the sale of goods orderered to be made, and contracts for such as are already made. It constantly happens, that the subject-matter is not at the time of the contract in the state at which it is to be de-livered; in some cases more is to be done, than in oth ers; but still the contract appears to relate to the sale of goods, although the goods may not be at the time of the purchase in a complete state for delivery. And this is the construction, which the Court of Common Pleas has put upon the clause in question, in the late case of Wilks v. Atkinson, (2) in which it was determined, that a contract for the purchase of a quantity of linseed oil was not liable to a stamp, although the oil had not been made, but was to be prepared out of raw materials in the seller's possession. An agreement for the sale of crops growing on certain lands, to be delivered afterwards, has been determined to 1 be an agreement for an interest in land, and is therefore 7465) not exempted as a sale for goods. (3) In the case of Waddington v. Bristow, Mr. Justice Chambre said, (1) See Groves v Buck, 3 Maule & Selw. 179. (2) 6 Taunt. 11. 1 Marshall, 412. And see the opinions of Lord Alvanley C. J. and Chambre J. in Waddington y Bristow, 2 Bos. & Pull. 454. (3) Waddington v Bristow, 2 Bos. & * 409 "Though I admit that a contract for the sale of so many hops as twenty-two acres might produce, to be delivered at a distant day, might fall within the exemption of the act, notwithstanding the hops were not in the state of goods at the time of the contract made, yet I cannot think the present agreement within the exemption, since it gives an interest to the vendee in the produce of the vendor's land." But where the owner of a close, cropped with potatoes, agreed to sell them at a certain rate, and the purchaser was to take them up immediately, the Court of King's Bench held, that this agreement was not for any interest in the land; (1) and the distinction, taken between this and the two cases just mentioned, was, that there the contracts were for the growing crops of hops, and grass (and therefore the purchasers of the crops had an immediate interest in the land, while the crops were growing to maturity,) but here the land was to be considered as a mere warehouse for the potatoes, till the purchasers could remove them, which was to be done immediately. So, where the agreement was to sell all the potatoes growing on a certain piece of land of the defendant, and the plaintiff to dig them up and carry them away, the Court held, that the contract was confined to the sale of the potatoes as mere chattels, and that nothing else was in the contemplation of the parties. (2) 5. Memorandum or agreement made between the master and mariners of any ship or vessel for wages, on any voyage coastwise from port to port in Great-Britain. 6. Letters containing any agreement (not before exempted) in respect of any merchandise, or evidence of such an agreement; which shall pass by the post, between merchants and other persons carrying on trade or com merce in Great-Britain, and residing and actually being (1) Parker v Staniland, East, 352. (2) Warwick v Bruce, 2 Maule & Selw, 205. at the time of sending such letters at the distance of 50 miles from each other. (1) A letter written by one, who managed another person's trade, to a creditor, promising to pay a debt which arose in the regular course, has been held to come within the letter and spirit of this exemption. (2) *CHAP. X. Of the Admissibility of Parol Evidence to explain, vary, or discharge Written Instruments. THE order, in which it is proposed to treat of this intricate and extensive subject, is, First, to consider in what cases parol evidence is admissible to explain ambiguities in written instruments; Secondly, whether parol evidence is admissible to add to, vary, or discharge written instruments; and, Thirdly, to consider the rule of evidence on this subject, established in courts of equity. * 410 SECT. I. Of the Admissibility of Parol Evidence to explain Am biguities. THE first section treats of ambiguities, latent and patent, and of the admissibility of evidence of usage as explanatory of ancient grants and deeds." There are two sorts of ambiguities of words, says (1) Leigh v Banner, 1 Esp. N. P. C. 403. St. 32 G. 3. c. 51. (2) M'Kenzie v Banks, 5 T. R. 176. [467] Latent ambiguity. * 411 deed or instrument is sufficiently certain and free from ambiguity, but the ambiguity is produced by evidence of something extrinsic, or some collateral matter out of the instrument; the latter kind is such as appears on the face of the instrument itself. In the first case, the ambiguity, which is raised by extrinsic evidence, may be explained in the same manner. Thus, if a person grant his manor of S. to one and his heirs, so far there appears to be no ambiguity; but if it should be proved, that the grantor has the manors both of South S. and North S., this ambiguity is matter in fact, and parol evidence may be admitted to shew, which of the two manors the party intended to convey.(1) So, it was resolved in Lord Cheyney's case, (2) if a person has two sons both baptized by the name of John, and conceiving that the elder, who had been long absent, is dead, devises his land by his will in writing to his son generally, and in truth the elder is living, in this case the younger son may in pleading or in evidence allege the devise to him, and if it is denied, he may produce witnesses to prove his father's intent, that he thought the other was dead; or, that at the time of making his will, he named his son John the younger, and the writer left out the addition. No inconvenience, adds Lord Coke, can arise, if an averment be taken in such a case; for he who sees the will, by which land is so devised, cannot be deceived by any secret averment; when he sees the devise to the testator's son John generally, he ought at his peril to enquire which son the testator intended, which may easily be known by him, who wrote the will, and by others who were privy to the in (1) Bac. Elem. rule 23. (2) 5 Rep. 68. b. See also Altham's dase, 8 Rep. 155. Hob. 32. Jones v Newman, 1 Blackst. 60. Harris v Bp. of Lincoln, 2 P. Wms. 136. Careless Careless, i Merivale, 384. |