T. T. 1859. tional delivery did in fact take place. The law is clear, that such stipulation may be inferred from circumstances and conduct, as Exchequer. NEWENHAM บ. SMITH. any such inference. well as proved by words. But here there was nothing to found The evidence was, that the Rev. Mr. Bourne was asked for an appointment, and that he gave the document of the 12th of July without any stipulation or statement as to what the plaintiff was to do with it, and, therefore, without any stipulation or statement imposing any condition upon the signing or delivery of the document. Upon the face of the document itself, there is nothing conditional. It is not addressed to the curates. It is addressed "to all whom it may concern;" and there is nothing whatever in its contents to connect it with anything from which an inference of any condition or restriction of the ordinary import of its words could be drawn. That portion of the case, therefore, is disposed of by the evidence. Then it was contended, that parol evidence might be given to show that the instrument was not in fact an appointment, or that it was not intended by Mr. Bourne to operate as such. This is a question of great importance. It is of the utmost consequence that it should not be supposed, from some terms to be found in the language in which Judges speak of the exposition of certain written instruments, that any of the authorities warrant the proposition, in its generality, that parol evidence is admissible to explain a written instrument. They are all cases in which the "surrounding circumstances" were allowed to be shown, in order to supply, by proof of the subject-matter of the contract, and the circumstances under which it was made, and the position of the parties, some matter which was necessary to make clear that which, without such proof, would be ambiguous. We are not here dealing with the well-known excepted cases, in which evidence of the declarations of the party have been received, to identify a person or a thing, or to rebut an equity. The class of cases relied on before us was that of instruments (such as guarantees) in which parol or extrinsic evidence was, unquestionably, received for the purpose of aiding the construction of the instrument. But it was not parol or extrinsic evidence Exchequer. NEWENHAM v. SMITH. of the intention of the parties, it was evidence not to prove T. T. 1859. what was intended by the parties to the instrument, but to prove facts and circumstances to which the document related, and thus to make, not the witnesses, but those facts and circumstances, the expositors of the words which were used in reference towards them. See 2 Taylor on Evidence, p. 963, s. 1087. I shall not go at length into those authorities. I shall refer only to one of the last of them, which was not cited at the Bar, Bainbridge v. Wade (a). There, the case of Goldshede v. Swan (b), and the previous authorities, were made the subject of comment. In Bainbridge v. Wade, a declaration in assumpsit alleged that L. had requested plaintiff to sell and deliver to him goods in the way of plaintiff's business; and plaintiff had, at L.'s request, consented to do so, provided defendant would guarantee the payment, of which defendant, before the making of the promise after mentioned, had notice; that afterwards, and before L. was indebted to plaintiff for any goods, and when no goods delivered by plaintiff to L. were unpaid for, and no money was due from L. to plaintiff, on any account whatever, defendant, by writing addressed to plaintiff, promised in the words following:-"I hereby guarantee the pay"ment of any sum or sums of money due to you from" L., "the amount not to exceed, at any time, the sum of £100;" that afterwards plaintiff, confiding, &c., supplied goods to L. for reasonable prices, amounting to £100, and thereby allowed L. to become indebted to him in £100; that L. had not paid; breach, that defendant had not paid. On demurrer to the declaration, it was held that the circumstances stated in the declaration might be looked at to explain the meaning of the writing, and that the writing, so explained, showed a good consideration for defendant's promise; namely, the future advances by plaintiff to L., so as to satisfy the 4th section of the Statute of Frauds. The question there plainly was, whether the words "sums of money due to you" signified sums of money "now due," or sums of money hereafter to become due ?" The facts proved showing that nothing was due at the time, the 66 (a) 16 Q. B. 89. VOL. 10. (b) 1 Exch. 154. NEWENHAM v. SMITH. T. T. 1859. guarantee would have had no operation, in relation to the surroundExchequer. ing circumstances, if it referred to the past; and thus, in order to give it operation, and to apply it to an existing subject-matter, it was construed as having reference to the future. Some observations were made by the Court, in the course of the argument and judgment in that case, which explain not only what the Court there decided, but the course of previous decision in this class of authorities. It was contended that evidence of those facts could not be used for the purpose of construing the document, upon the ordinary rule that the document must be its own expositor. But Lord Campbell, in reply to this argument, observed :-"The question is, whether the "state of circumstances contemporaneous with the making of the "contract may not be shown?" And again :-"It seems to be 'something like receiving oral evidence of the state of property "which is the subject of a will." And Lord Campbell, when he came to give judgment, said:" When I look at the facts admitted "by the demurrer, I see no room for doubt. No one will contend, 66 or ever has contended, since Meres v. Ansell, that the effect of a "written instrument can be varied by oral evidence; all that "is permitted is, to show in what sense words are used, by "showing what the situation of the parties was at the time. I "think that Shortrede v. Cheek, Brooks v. Haigh, Goldshede v. "Swan, and Edwards v. Jevons, were all properly decided." So Mr. Justice Erle said: "I am surprised to find that the learned "Counsel for the plaintiff, after the decisions in this Court, the "Common Pleas and the Exchequer, disputes the doctrine, that "evidence of the circumstances of the parties may be let in to "explain the meaning of an instrument." In this case, I, perhaps, allowed too large a latitude; for I permitted evidence to be given of the practice of Mr. Bourne with reference to the appointment to these offices; and the only piece of evidence which did exist, by which it was possible to construe that instrument, was the evidence given of that practice. But there is nothing in the form of the instrument which in any manner affects the appointment, by any reference to the approbation of the curates. There is no postpone Exchequer. NEWENHAM v. SMITH. ment of the appointment until an opinion had been obtained from T. T. 1859. the curates. It is not addressed to the curates. There is no ambiguous word in it, which the habit or practice of the vicar (supposing it were admissible for this purpose, without any reference to it in the instrument) could explain. The vicar's habit and practice in these matters was of his own creation, and he might have abandoned or adhered to it, as he pleased. Whether he did or did not intend to act upon it could only be determined by the contents of the instrument. If the uniform practice of the vicar had been to depute to the curates the making of the appointment, and if the instrument had been addressed to them, the argument might have been urged (whether successfully or not it is unnecessary to consider) that the usage might be referred to as a circumstance connected with the appointment, and explanatory of the term "approve." But the reverse of this was the fact. There is, therefore, no ground for importing any meaning into the document, derived from the habit or practice of the vicar. These portions of the case being thus disposed of, the only question which remains is whether, taking this instrument as it stands, incapable of explanation by parol evidence, and deriving no explanation inconsistent with its being absolute in its import, from extrinsic circumstances, it operates, by its terms, an absolute appointment? and I confess I think it difficult to understand how otherwise it can be construed. It states a vacancy in the office of sexton. It states that the vicar who signs it, and who alone, by law, has vested in him the power, and has also cast upon him the duty, of filling that vacancy, "approves of the plaintiff being appointed to the situation." The vicar, knowing that the curates are in the actual administration of the affairs of the parish, passes them by, and delivers the paper to the person who solicits the appointment, "to all whom it may concern." Who are those persons? Manifestly, all the parishioners, who are all interested in the appointment. It suggests no one upon whose concurrence any future decision is to rest, or any future act is to be done. Such being the frame and language of the document, and such the circumstances under which it was given, it appears to me that it can, in reasonable construction, Exchequer. NEWENHAM บ. SMITH. T. T. 1859. bear no other meaning than that of an appointment to the office of the person of whom the vicar signifies his approval, to all who may be concerned in the appointment. No particular form of words is necessary to constitute an appointment. Analogous cases, upon the subject of the creation of estates, were cited in the argument: Maldon's case (a); Holms v. Seller (b). It is unnecessary to refer further to them. In a vast variety of cases, words of present agreement for enjoyment, though contemplating future acts of assurance, have been held to operate as an actual demise. We may, perhaps, conjecture that the Rev. Mr. Bourne really did intend something else besides what he wrote. I can only say, si voluit non dixit. We are obliged to apply to particular cases general rules of law; and, upon the whole, we are of opinion that this was a valid appointment, and that the verdict cannot be disturbed on any of the grounds on which it is sought to set it aside. RICHARDS and GREENE, BB., concurred. FITZGERALD, B. I concur in the judgment, though I confess that the result of the case is not satisfactory to my mind. Of the questions discussed before us, the only one of substance appeared to me to be the question, whether the letter of the 12th of July operated as a present appointment? I confess I think the most obvious construction of that instrument to be, that it was not an appointment, but an approbation by Mr. Bourne of an appointment made or to be made by another. That raises a question as to the construction of the language of the instrument, because it is not contended that the words were absolutely insufficient to operate as a present appointment. We must then apply the ordinary rules of construction; and of these the most elementary are to consider the condition and capacity of the parties to the instrument, and the consideration on which it is founded. One of the parties is the plaintiff, who was capable of accepting a present appointment, and the other is Mr. (b) 3 Lev. 305. (a) Moore 8; S. C., Cro. Eliz. 33. |