carpenter's work,) or only the payment of a certain sum of money by the pauper to the master at the time when the agreement was made. But from the opinions expressed by the Court, in which the evidence of the verbal agreement was not adverted to, it may be inferred, that the latter fact alone was adjudged to be admissible. Lord Kenyon said, "The evidence was offered to ascertain an independent fact, and I think it was properly received in evidence. That being so, the case appears to be shortly this: in consideration of three guineas paid by the pauper, the master undertook to teach him the business of a carpenter, and the pauper was to serve three years." Mr. Justice Lawrence expressed himself nearly in the same words; and Mr. Justice Le Blanc concurred in opinion with the Court, that the parol evidence was admissible, as evidence of a fact collateral to the written instrument (1).

A deed cannot be discharged or revoked by parol; for Parol agreeevery contract or agreement, says Lord Coke, ought to be ments discharged by dissolved by matter of as high a nature as the first deed (a); parol.

(1) See also 14 East 544.

(a) Vide Kelleran v. Brown, 4 Mass. Rep. 443. The time of the performance of the condition of a bond may be enlarged by a parol agreement of the parties; and where certain acts were done by the obligor, amounting to a substantial, though not to a literal performance of the condition, it was held, that evidence of a parol agreement, by the obligee, to waive any further performance, was admissible. Fleming v. Gilbert, 3 Johns. Rep. 528. Keating v. Price, 1 Johns. Cas. 22. But in all these cases in which parol proof has been admitted of an agreement to enlarge the time, or dispense with the performance, the agreement was subsequent to the time of the original contract, and admitted the force and effect of it; but it would be inadmissible to show the original agreement to be different from what appears on the face of the instrument; as that it was intended at the time of the making of a promissory note that it should not be payable until a period subsequent to that on which it was expressed to become due. Thompson v. Ketcham, 8 Johns. Rep. 189.

445

nihil tam conveniens est naturali æquitati, quam unumquodque dissolvi eo ligamine, quo ligatum est (2). But it appears to be generally understood, that executory agreements in writing, not under seal, may before breach be discharged and abandoned by a subsequent unwritten agreement, as well in cases where the original contract is required by the statute of frauds to be in writing, as where writing is unnecessary. The reason above, cited from Lord Coke's reports, applies only to agreements by specialty. Agreements, not by specialty, whether written or unwritten, are classed on the same level, and denominated *agreements by parol; there is no such third class recognized by the law of England as contracts in writing not under seal; if they are merely written and not specialties, they are called parol (a) (or, more properly, simple) contracts (1). It follows, therefore, that to admit evidence of an unwritten agreement, for the purpose of showing an abandonment or discharge of a previous written agreement, would not be to dissolve the agreement by matter of an inferior nature (6.) Nor does the statute of frauds contain any provision respecting the dissolution of agreements; it prescribes the manner of revoking wills, and in many cases makes a written memorandum necessary in order to establish and enforce agreements, but as to the discharge or abandonment of executory agreements the statute is entirely silent, leaving the case as it stood at common law. The 17th section enacts, in certain cases, that " a contract for the sale of goods shall not be allowed to be good, unless some note or memorandum, in writing, of the bargain shall be made and signed," &c.; but an agreement to

(2) 5 Rep. 26. a. 3 Lev. 234. Blake's case, 6 Co. Rep. 44. a. Braddick v. Thompson, 8 East 344.

(1) Rann v. Hughes, 7 T. R.

350. n.

(a) Acc. Ballard v. Walker, 3 Johns. Cas. 60.

(b) So, the holder of a bill of exchange may discharge the acceptor by parol. Whatley & others v. Tricker and others, 1 Campb. waive the contract, before breach, is not a contract for the sale of goods, and may therefore be binding, though not reduced into writing. So, the fourth section enacts, that "no action shall be brought upon any contract or sale of lands, &c., or any interest in or concerning them, unless the agreement, upon which the action shall be brought, or some memorandum or note thereof shall be in writing," &c.; this is very different from enacting, that all contracts or agreements concerning land shall be in writing, terms so general and comprehensive that, if they had been introduced into the act, they might be considered as including an agreement for the waiver of a purchase contract, as well as the original agreement itself; the section only provides, that "no action shall be brought upon any contract or sale of lands," &c., but it does not proceed to enact, in case an action is brought, and the defence set up is a dissolution and abandonment of the agree*ment, that some note or written memorandum is also necessary to give effect and validity to such subsequent agreement.

On a bill filed in a court of equity for the specific performance of a written agreement, it appears to be the better opinion, that the defendant may insist, that the agreement has been since discharged merely by parol between the parties (1). In the case of Buckhouse and Crossby (2), indeed, where a bill was filed for the specific performance of a contract for the sale of an estate, and the defendant insisted that the contract had been discharged by parol, in support of which the case of Goman v. Salisbury was cited as an authority, Lord Hardwicke is reported to have declared, that, " though he would not say, that a contract in writing could not be waived by parol, yet he should expect in such a case a very clear proof, and the proof in the

(1) Goman v. Salisbury, 1 Vern. 240., cited and approved by Sir J. Strange in Legal v. Miller, 2 Ves. 299., and in Pitcairne v. Ogbourne, 2 Ves. 376., and cited by Lord

Chancellor Redesdale in 1 Schoal. &
Lef. 39. 2 Ves. 299. S. P. 1 Ves.
jun. 404. S. P. 17 Ves. jun. 356.
S. P.

(2) Eq. Cas. Ab. 32

case before him he thought very insufficient to discharge a contract in writing;" Lord Hardwicke then observed, that the statute of frauds requires, "that all contracts and agreements concerning land should be in writing, and that an agreement to waive a purchase-contract is as much an agreement concerning land as the original contract; however, there was not occasion then to determine the point*." *And in the case of Bell v. Howard (1), Lord Hardwicke, after noticing an objection on the part of the defendant against decreeing an execution of written articles for the sale of an adyowson, (namely, that the plaintiff had waived the articles,) is reported to have said, that " it was certain an interest in land could not be parted with or waived by naked parol without writing;" but added, "that articles may by parol be so far waived, that if the party come into a court of equity, to have a specific execution of them, such parol-waiver will rebut the equity which the party before had, and prevent the court from executing them specifically." But in the last case on this subject (2), where the plaintiff prayed a specific performance of an agreement for a lease, under which the plaintiff had taken possession, and

afterwards, as the defendant stated in his answer, the parties mutually abandoned the terms of the written agreement, and made another agreement by parol, the Master of the Rolls, observing upon the argument for the defendant, " that the agreement was waived, and that a written agreement may be so far waived by parol, that the court will refuse the interposition of its equitable jurisdiction to enforce it," said, that as he conceived there was not in the case before him any waiver within the meaning of the dicta or the decisions upon the subject, it was not necessary for him to give any precise opinion upon the point; "but," he added, "as at present advised, I incline to think upon the doctrine of this court, such would be the effect of a parol waiver clearly and satisfactorily proved. The waiver spoken of in the cases is an entire abandonment and dissolution of the contract, restoring the parties to their former *situation. No such thing was for a moment in the con⚫templation of the parties. All that they at any time meant was to add to or modify the terms of the original agreement." The bill was accordingly dismissed, but without

costs.

* 448

SECT. III.

Of the Rule in Courts of Equity, respecting the Admissibility of Parol Evidence.

THE rules of evidence in courts of equity are the same as in courts of common law; and it is a general principle, established in the former, no less than in the latter, that parol evidence of the intention of the parties is not admissible to vary or add to the terms of a written agreement (1). If the agreement is certain, explained in writing, and signed by the parties, that binds them; if it is not cer

(1) Fell v. Chamberlaine, 2 Dick. 424. Hare v. Shearwood, 1 Ves. jun. 241. Jordan v. Sawkins, 3 Br. Ch.

C. 388. 1 Ves. jun. 402. S. C.
Jackson v. Cator, 5 Ves. jun. 688