Sec 660

As is elsewhere more fully shown,6 it may be proved by parol that the parties to a contract have agreed to collaterally extend it in a mode not inconsistent with its written terms, and that what may be thus done by direct agreement may be done indirectly by force of usage to which the parties may be supposed to have acceded.

Sec 661

When a contract consists of mere memoranda, and though intended to be final, is rather to be regarded as a short-hand statement of the intention of the parties than as an exact expression of that intention, it may be helped out by parol proof.7 The mere fact that in itself it is incomplete does not make it inoperative.8 This is the case even under the statute of frauds. "A general description of the estate, e. g. Mr. O.'s house, or my house, or the properties in Cable street, or the house in Newport, or the intended new public house at Putney, or the premises, is sufficient, if parol evidence can be produced to show what property was intended."1 Such evidence, however, is admissible to explain, not (unless mutual mistake be set up) to contradict the terms of the document.2 If mutual mistake be alleged, it is admissible, as we have seen,3 to prove, in cases where no statute is in the way, what was the contract the parties really intended to make, and this rule applies to contracts under seal as well as to other contracts.4 But the evidence of mutual mistake must be strong and clear, and that of the contract to be substituted plain. It must always be remembered that the court cannot make a contract for the parties. This can only be done by themselves.5 At the same time, to show what the parties meant, customary incidents may be proved. But a custom, to be admissible in evidence, must be brought home to the party against whom it is offered,6 nor can it make a contract which the parties did not make. Its only office is to bring out what was meant.7 "Words, also, cannot, as a mode of construction, be interpolated. If a concurrent mistake has been made, correction is to be effected by process of rectification.8 It cannot be done by conjectural emendation by a court.9 - Customary incidents may be annexed by parol.

Parol evidence admissible to explain, rectify, and rescind.

1 Bradley, J., Peck V. U. S., 102 U. S. 65; Wh. on EV. sec 939 et seq., and cases there cited.

2 Wh. on EV. sec 958. As to rectification, see supra, sec 205.

3 L. 25, sec 1, D. de leg. 32.

4 L. 69 pr. eod.

5 Coles V. Hulme, 8 B. & C. 568; Elliott's case, 2 East P. C. 951; Fergnson V. Harwood, 7 Cranch, 414, and cases cited 1 Ch. on Con. 11th Am. ed. 107.

6 Wh. on EV. sec 969, 1026.

7 Supra, sec 202 et seq.; infra, sec 910.

8 See Wh. on EV. sec 922 et seq., and see supra, sec 5 et seq.

1 Dart, V. & P. 5th ed. 219, adopted by Baggallay, J., in Shardlow V. Col-terell, L. R. 20 Ch. D. 280; Sugden, V. & P. 14th ed. 134, citing Bleakley V. Smith, 11 Sim. 150; Ogilvie V. Fol-jambe, 3 Mer. 53. See supra, sec 630 et seq. Other cases are cited supra, sec 202 et seq. That a contract is to be viewed in the light of surrounding circumstances, see Farnsworth V. Board-man, 131 Mass. 115.

2 Wh. on EV. sec 922 et seq.; supra, sec 202, 205, 601; Bishop V. White, 68 Me. 104; Stewart V. Cambridge, 125 Mass. 102; Brown V. Brooks, 25 Penn. St. 210; Williamson V. McClure, 37 Penn. St. 402; Allison's App., 77 Penn.

St. 221. See Maxwell V. Thompson, 15 S. C. 612. As to rectification in case of fraud or mistake, see supra, sec 205 et seq.; infra, sec 910.

3 Supra, sec 205.

4 Canal Co. V. Ray, 101 U. S. 522; supra, sec 642.

5 Supra, sec 205, 601; infra, sec 910; Wh. on EV. sec 1019; Canal Co. V. Ray, 101 U. S. 522; Smith V. Emerson, 126 Mass. 169. As to parties, see sec 804.

6 Wh. on EV. sec 962; Harris V. Turn-bridge, 83 N. Y. 92.

7 Tilley V. Cook, 103 U. S. 155.

8 See supra, sec 205 et seq.

9 Frazier V. Monroe, 72 Penn. St.

Supposing there be no statutory impediment in the way, it is competent for the parties to a written agreement, at any time before its breach, or before vested rights are acquired under it, to rescind it, or to remodel it by parol; and in the latter case the reciprocal rights of the parties will subsequently be determined by putting together the new parol terms with what remains of the old. To deny this right to reconstruct would involve a petitio principii. The agreement, it is alleged, cannot be altered, because it is binding, and it is binding because it cannot be altered. But, as a matter of fact, the binding force of all agreements, no matter how solemn, falls back on parol proof. No document, strictly speaking, proves itself. When a document is said to prove itself, all that is meant is that the court takes judicial notice that it is properly executed, but the court takes this notice because the judges composing the court have learned, originally by parol, that the seal or other verification attached to the document is genuine. There is no document, therefore, whose genuineness is not ultimately to be decided by parol proof; and to assume that a contract before us cannot be affected by parol proof is to assume that it is a binding contract, which is the very point in dispute.1 - It is true that there may be statutory modifications of this rule, and where such modifications are made they are, as far as practicable, to be enforced. Thus under the statute of frauds, requiring that agreements for certain purposes must be in writing, an agreement duly written under the statute cannot be emptied of its contents and new conditions inserted by parol. It would be equivalent to saying that when a statute provides that no goods should pass a custom-house inspection unless the box be sealed by the proper officer, it would be allowable, as soon as a box was sealed, to empty it of one lot of goods and fill it with another. And in addition to the violation of law implied in this, it must be remembered that the object of the statute of frauds is to prevent parol agreements of the particular class, and an agreement would be none the less parol because it is grafted on a writteV.

1 Wh. on EV. sec 901 et seq.; Noble V. Ward, L. R. 2 Ex. 135; Sanderson V. Graves, L. R. 10 Ex. 234; Plevins V. Downing, L. R. 1 C. P. D. 220.

2 Moore V. Campbell, 10 Ex. 323.

3 Steed V. Dunbar, 10 A. & E. 57; Marshall V. Lynn, 6 M. & W. 109; Plevins V. Downing, L. R. 1 C. P. D. 220.

4 Goss V. Nugent, 5 B. & Ad. 58.

5 Giraud V. Richmond, 2 C. B. 835.

6 Leake, 2d ed. 797; Suelling V. Thomas, L. R. 17 Eq. 303.

7 Wh. on EV. sec 909.

8 Leake, 2d ed. 799; Wh. on EV. sec 909; Price V. Dyer, 17 Ves. 363.