Parol Explanation evidence that the auctioneer had stated that fact was rejected. See Anson v. Towgood, 1 Jac. & W. 637. of Writings. In Shelton v. Livius, 2 Cr. & J. 411, where A., the purchaser at an auction, had sold his lot to B. immediately after it was knocked down to him, evidence of declarations by the auctioneer, varying the terms of the particulars, which were heard by B. as well as by A., was not admitted in an action by A. against B. agreement A written agreement that the purchaser shall Written "abide by the conditions and declarations made at that purchaser the sale," does not authorize the vendor as plaintiff shall abide by to use such declarations in evidence against the pur- made at the chaser: Higginson v. Clowes, 15 Ves. 516; affirmed, sale. 1 V. & B. 424. of matters not instrument. Symonds. The existence of a writing does not, however, Parol evidence necessarily exclude parol evidence as to every part within the of the transaction to which it relates; for, if the scope of the writing does not on the face of it purport to include the whole transaction, there is no objection at common law to the proof by averment of those matters which are not within its scope. In Davis v. Symonds, Davis v. 1 Cox, at p. 405, Eyre, C. B., speaking of the rule that excludes parol evidence when there is a writing, said: "I take this rule to apply in every case when the question is, what is the agreement? And this rule applies no further than this precise question; for as often as the question is, what were the collateral circumstances attending the agreement? so often may such collateral circumstances be proved by parol evidence: there is no law which says such collateral circumstances may not be so proved. If any of these collateral circumstances are reduced into writing, then the same rule applies to them as to the original agreement; but if not, both at law and in equity, such collateral circumstances may be proved by parol." Thus, although the consideration Parolevidence upon which an agreement is made is an essential of considerapart of that agreement, while it is executory (ante, p. 326), yet it is not necessary to be stated in a conveyance by which an agreement is executed, for the conveyance is not in the nature of an agreement so tion. Parol Explanation much as it is a performance on one side (a); if thereof Writings. fore in a deed of conveyance no consideration is stated, parol evidence may be received to show that there was a consideration: Peacock v. Monk, 1 Ves. sen. 128. So also if a nominal consideration is named in the deed, evidence aliunde may be given of the real consideration: Re Leifschild, L. R., 1 Eq. 231. "It may be shown by extrinsic evidence who is the author of a gift, when that does not appear upon the face of the transaction. Whatever is wanting to show the consideration, and from whom it moves, may, I apprehend, be supplied by evidence dehors the deed, when such evidence does not contradict the deed:" Per Sir W. Grant, M. R., Hartopp v. Hartopp, 17 Ves. 192. See 14 Ves. 170. So if the conveyance is expressed to be made "for divers good considerations," upon which general words it is settled no use arises, a particular consideration as that of relationship, or money paid, may be proved by averment: Mildmay's case, 1 Rep. 175. See Lacy v. Whetston, Cr. El. 343, contra. As to proving a different consideration from that stated. sideration. In Lord Cromwell's case, 2 Rep. 69, it was resolved, "that when a fine, feoffment or other conveyance imports an express consideration, a man may aver Parolevidence by word another consideration which stands with to show con- the consideration expressed; but the parties cannot by parol aver any other use than is contained in the same conveyance; also, no averment shall be against the consideration expressed." See also Bedell's case, 7 Rep. 39. In Villers v. Beaumont, Dy. 146, pl. 68; 1 Rep. 176; 4 Rep. 3; an indenture of bargain and sale was expressed to be made in consideration of 701., paid by C., and a recovery was suffered thereon; and an averment that the indenture was made, and the recovery had, in consideration of a marriage between R. B. and C. (in order to make it (a) And so the date is not of the substance of a deed, for as the writing and sealing precede the delivery, a false or impossible date does not exclude proof of the actual time of delivery: Goddard's case, 2 Rep. 4; Hall v. Cazenove, 4 East, 477. See Styles v. Wardle, 4 B. & C. 908; Davis v. Jones, 17 C. B. 625. Explanation a jointure within the stat. 11 Hen. 7), was allowed, Parol although there was a particular consideration men- of Writings. tioned in the deed. A fortiori, it was allowable where there was no certain consideration named. See also Vernon's case, 4 Rep. 3 (a). In Rex v. Scammonden, 3 T. R. 474, to establish a settlement, it was allowed to be shown by parol, that before the deed of conveyance of an estate, which recited the consideration for the purchase to be 28., was executed, the vendor refused to execute unless he had 307., which was paid, and the deed executed without alteration. The evidence in Rex v. Scam- Evidence to monden was not admitted for the purpose of altering vary agree the construction of the instrument as between the against third (a) Of course, in order to show that a transaction was void for illegality, &c., the party impeaching it may prove the want of a consideration in opposition to the express statement in the deed, or may prove a different consideration from that stated: Doe d. Chandler v. Ford, 5 Nev. & M. 209; Rex v. Olney, 1 Mau. & S. 387; Rex v. Cheadle, 3 B. & Ad. 833. But a different consideration from that stated in the deed cannot be alleged, it seems, by the party charged with a fraud, in order to support the transaction, unless the truth of the statement is itself impeached on the other side. See Clarkson v. Hanway, 2 P. Wms. 203. And as no executory compact is binding, unless made for good consideration, or under seal, a statement of a consideration in an instrument not under seal, may be disproved by the party to whom the consideration is falsely stated to have moved. See Pike v. Street, 1 Mood. & M. 226; Foster v. Jolly, 1 Cr., M. & R. 703; Rex v. Wrangle, 4 Nev. & M. 375. The distinction is between evidence of agreement and evidence of a fact. Where the parties have agreed to state the terms of their contract in writing, they are bound to rely on the writing as conclusive evidence of those terms; but where they state a fact in writing (not expressly agreeing to be bound by such statement), the writing, though evidence pro tanto of the fact, does not exclude other evidence and to contradict it by such evidence is not to vary any term of the agreement, but to show that it was made under different circumstances from those stated. Thus, a receipt for money is a memorandum of a fact, and may be contradicted; a written release, if it is not stated to be founded on a payment which in fact has not been made, is evidence of an agreement, and cannot be contradicted; though, of course, its binding effect may be questioned. Where a person, by writing, agrees to give up his legal rights, the paper does not exclude evidence that he was ignorant of their true nature, for that is a fact, and not part of the agreement: M'Carthy v. Decaix, 2 Russ. & M. 614; Pickering v. Pickering, 2 Beav. 31; affirmed on appeal, 4 My. & Cr. 289. ments, as persons. Explanation Parol parties to it, but for the purpose of showing, as of Writings. between one of those parties and third persons, what were the real circumstances attending the transaction. See Rex v. Wickham, 4 Nev. & M. 406, where strangers to a deed were allowed to show that land described in it as being in the parish of C., was really situate in A. And generally any verbal representations may be given in evidence for the purpose of establishing any fact or understanding which does not properly fall within the scope of the written agreement: Williams v. Jones, 5 B. & Cr. 108; Hope v. West, 7 Scott, 876. Evidence of collateral circumstances. So, an agreement may be complete, as between the two opposite contracting parties to the instrument, without stating the terms of the arrangement between several persons on the one side. Thus, where A. as principal, and B. as surety, entered into a joint and several bond to N. for 1,2007., and C. by another bond, reciting the former bond, bound himself for the same sum, with condition to be void on payment by A. and B., or either of them. The transaction, so far as concerned the security to N., was completely expressed on the face of the instruments, and the arrangement between A., B., and C., as to the order in which they should be liable among themselves, being immaterial for the purpose of the security to N., was allowed to be made out by parol. "Evidence is admitted," said Lord Eldon, "to show who is the principal and who the surety, and in order to determine that, to show to whom the money was advanced; and why is it not to be admitted to show to whom the money was advanced as between C. and the others?" Craythorne v. Swinburne, 14 Ves. 170. See Davis v. Symonds, 1 Cox, 402, 404. So, the object for which a bond or other security is given, being a collateral circumstance to the legal effect of the instrument, and in the nature of a trust of personalty (which is not within the Statute of Frauds), may be proved by parol: Ward v. Lant, Pr. Ch. 182; Johnson v. Smith, 1 Ves. sen. 314; Stratford v. Powell, 1 Ball & B. 1. See Simpson v. Vaughan, 2 Atk. 31; Burn v. Burn, 3 Ves. Parol Explanation 573; Ex parte Morley, 2 Dea. & Ch. 50. As to the jurisdiction of the Court over its judgments in cases of Writings. of mistake, fraud, &c., see Antrobus v. Smith, 12 Ves. 39. So, the remedy may be extended beyond the penalty Grant v. Grant, 3 Russ. 598; Clarke v. Lord Abingdon, 17 Ves. 106. See Clarke v. Seaton, 6 Ves. 411. But, where a creditor compromises by writing with the principal debtor, and intends to preserve his remedy against the surety, a stipulation to that effect is so far an essential part of the transaction, that it must be inserted in the writing, and cannot be proved by parol: Ex parte Glendining, Re Renton, Buck. 517. the whole Again, if the writing on the face of it does not Parolevidence where writing purport to state all the terms of a complete agree- does not purment, although no evidence will be allowed to alter port to include that which it does determine, those terms as to transaction. which it is silent may be established by parol. Thus, in Jeffry v. Walton, 1 Stark. 267, the defendant had hired a horse of the plaintiff, and the following memorandum was made at the time :"Six weeks at two guineas. W. Walton, jun. :" and parol evidence that the defendant agreed to be answerable for accidents was admitted. Where, by the same instrument, A. agreed to purchase an estate of B., and B. agreed to purchase another estate of A., and A. failed to make a title to the estate which he was to sell to B., it was held, in a suit by B. for specific performance of the contract on A.'s part, that A. could not read parol evidence to prove that the two sales were intended to be conditional: to do so would be to vary the agreement: Croome v. Lediard, 2 My. & K. 251. fraud. As circumstances which constitute fraud against Parolevidence one of the parties to an agreement cannot be said to prove to form any part of the agreement, the admission, of parol evidence of fraud, for the purpose of impeaching a written instrument, 1 Dick. 347, seems to form no exception to the rule under consideration; even where the effect of such evidence is to prove a different contract from that which is evidenced by the writing, for the evidence is offered, not for the |