Sec 643

But when the question arises as to the mode of proving a contract, it is an established rule of evidence that all preliminary negotiations are to be regarded as merged in the writing which the parties have agreed on as the final expression of their views.7 That which is likely to have been the more deliberate form of expression, and to have been most maturely weighed by them, will be regarded as their final utterance. It is not so merely because the form selected is written while that rejected is unwritten. Cases sometimes arise in which it may appear that a word was used under mutual mistake, and in which an unwritten word may be substituted on oral proof for a written word.8 And cases still more frequently arise in which informal written memoranda are merged in a final unwritten contract.9 There is no inexorable rule, therefore, that, wherever there is oral and written proof of the same transaction, the oral is to be regarded as merged in the writteu. The rule is simply this, that, when a writing is signed by the parties to a contract, it is presumed, until the contrary be proved, to embody their final determination, absorbing all preliminary negotiations, whether written or unwritten.1 On the one side, an agreement meant merely to be tentative cannot sustain a suit.2 On the other side, it is competent for the parties to convert such tentative agreement into a final contract.3

Final written contract absorbs preliminary negotiations.

V. Massey, L. R. 8 C. P. 395. A specialty, however, is supposed to be of a higher solemnity than an unsealed contract, and when an unsealed contract is succeeded by a specialty on the same subject-matter, the sealed is supposed to absorb the unsealed document. See infra, sec 643.

1 Infra, sec 684.

2 Parol evidence may be also used, as Mr. Leake (Contracts, 2d ed. 170) notices, as convertible with extrinsio evidence, to which he cites 3 Black. Com. 367; Taylor on EV. sec 367.

3 Wh. on EV. sec 60.

4 lb. sec 71.

5 lb. sec 72.

6 lb. sec 930 et seq.; Canal Co. V. Ray, 101 U. S. 527.

7 That provisional agreements are not to be treated as final, see supra, sec 5.

8 See supra, sec 205 et seq.

9 Wh. on EV. sec 1014; supra, sec 5.

Sec 644

Written words may be put on the margin or in the blanks of a prepared form merely as suggestions for future consideration; and this is often the case with words written with pencil, so that the marks can afterwards be rubbed out. In such cases it is a question of fact whether the words were meant to be permanently binding.4 If the agreement was merely tentative, and was not intended by the parties to operate until reduced to form, then it cannot, until so reduced, sustain a suit.5

Sec 645

Yet it does not follow that, because the parties intend to embody their determination in a solemn writing, prior provisional agreements entered into by them are without force. On the contrary, such agreements, though consisting of mere memoranda, and meant by the parties to be superseded in future by a document elaborately drawn and engrossed, may bind effectually, if so intended, unless otherwise prescribed by statute, until the document in which it is intended they should be merged is executed.6 A lessor is bound by an agreement to lease notwithstanding that this agreement provides that a "proper contract" is to be drawn by a solicitor.1 The directors of a corporation vote to approve an agreement with a contractor, "the said agreement to be engrossed in duplicate, signed, sealed, and delivered," and the vote binds, though no such deed be executed.2 A correspondence takes place between two brokers in which a sale is agreed on, the vendor saying, when accepting, "contract in due course;" and the sale is complete, although a contract afterwards forwarded by one party is rejected by the other as not accurately giving the terms agreed on.3

Writing may be on its face tentative.

Provisional agreement may bind until final be executed.

1 Leake, 2d ed. 173; Wh. on EV. sec 1014, and cases there cited; Bran-torn V. Griffits, L. R. 2 C. P. D. 212; Broughton V. Mitchell, 64 Ala. 210; Blackman V. Dowling, 63 Ala. 304. That on an inchoate and imperfect agreement suit cannot be brought, see supra, sec 5.

2 Supra, sec 5.

3 Riggins V. R. R., 73 Mo. 598.

4 Leake, 2d ed. 220; Lucas V. James, 7 Hare, 419; Adams in re, L. R. 2 Pr. 367.

5 Supra, sec 5; infra, sec 646.

6 Gibbins V. Asylum, 11 BeaV. 1; Fowle V. Freeman, 9 Ves. 351; Crossley V. Maycock, L. R. 18 Eq. 180; Thomas V. Dering, 1 Keen, 729; and cases cited supra, sec 5.