pany agreed to supply a city with what coal it might require between given dates, the court rejected evidence of a custom to the effect that all such contracts were subject to strikes, on the ground that the evidence was repugnant to the unconditional agreement to supply the city with what coal it might require (26).

The cases cited will indicate the uncertainty of the courts as to how far evidence of custom is admissible in connection with written contracts. The consensus of authority seems to be that such evidence is admissible to modify the force of written contracts to a certain extent, as yet vaguely defined. On the other hand, evidence of custom is inadmissible if it would work any radical change in the contract as drawn. Practically, the consideration of what the court regards as reasonable in each particular case is of very great weight.

§ 107. Oral declarations admissible as to collateral matters. While oral declarations are, as we have seen, ordinarily powerless to change the terms of a contract, such declarations may be received as to points which are collateral. Thus, according to a Massachusetts case, a person buying a lot of land may show that the seller made a verbal promise that he would grade and build the street, on which the lot was situated, to connect with a public street already opened, and would cause city water to be put into the street by a given time (27). The court held that the undertaking, here established by evidence of verbal statements, did not vary the contract for the pur

(26) Covington v. Kanawha Coal & Coke Company, 28 Ky. L. Rep. 636.

(27) Durkin v. Cobleigh, 156 Mass. 108.

chase of the lot, but was, in the language of the cases, "collateral to it." The term "collateral," however, is an uncertain test, and the case cited is of doubtful correctness. An agreement by a landlord to repair an apartment might be regarded as collateral to his agreement to lease the apartment. Yet, from another standpoint, the first agreement varies the second and makes it, instead of an agreement to lease the apartment as it stands, an agreement to lease it in an improved condition, which will call for outlay on the part of the landlord and thus materially reduce his profit. The fact is that, when the verbal undertaking imposes upon a party to a written contract an additional duty in reference to the same subject matter and increases his burden, it is ordinarily inadmissible.

§ 108. Oral declarations admissible regarding contracts only partly written. The preceding discussion relates only to cases in which the written instrument is complete in itself, and appears to embody an entire undertaking between the parties. If a contract is partly oral and partly written, and this is apparent from the writing, oral declarations are always admissible to establish the oral provisions. This is the case where a writing is a mere memorandum, such as "Bought of G. Pink a horse for the sum of £7, 2s, 6d." There the buyer of the horse was allowed to show that the seller had warranted it would work well and go quietly in harness, because it was improbable from the memorandum itself that it was intended as a complete statement of the contract (28). In another case, a furnace company installed certain fur

(28) Allen v. Pink, 4 M. & W. 140.

naces, which were guaranteed to effect a twelve per cent saving in fuel, but the method by which the saving was to be computed was not fixed. Necessarily, therefore, the way was left open for oral statements on this point; the contract did not cover it (29).

§ 109. Oral declarations in case of fraud or mistake. Although evidence is inadmissible of alleged terms of a contract, which are not incorporated in the written contract, evidence of oral statements is always admissible to show that the contract was obtained by fraud. To illustrate: The seller of a horse gave a written warranty that it was sound and kind. Orally he stated, in answer to the fears of the buyer that it could not make the speed required, that he would guarantee that it would cover seven or eight miles an hour, and he reiterated this as an inducement to the purchase of the horse. After the sale it turned out that the horse was slow, and the buyer brought suit for damages for false representations. On this issue he was allowed to introduce evidence of the seller's statement in regard to the horse's speed, not to vary the contract but to show fraudulent misrepresentations in securing it (30).

§ 109a. Reformation of written instruments for mistake. Moreover, in a proper judicial proceeding to reform (that is, to change the language of) a contract, evidence is admissible that in the original language there was a mutual mistake. Such mistakes often occur in the description of land in deeds. In one case, the buyer and

(29) Hawley Down-Draft Furnace Co. v. Hooper, 90 Md. 390. (30) State v. Cass, 52 N. J. Law, 77.

seller went upon the land in question, just before the deed was executed, noting particularly its boundaries, and then the seller gave a deed which he supposed described the land as they had observed it. In fact it turned out that the deed covered more land than the seller owned. Under the circumstances, in a proceeding in equity to reform the document according to the correct description, it was held that the mistake might be shown by evidence of the statements of the parties at the time the deed was executed (31). Such a decision seems an infringement of the parol evidence rule, because the effect of the evidence was certainly to change the terms of the writing. It did not, however, change the terms as the parties understood them when the deed was signed, and this was the saving point. The mistake was mutual. Only in such a case could the evidence have been admitted. Moreover, even then, such evidence is admissible only in a direct proceeding to alter the writing in conformity with the intent of the parties; the question of mistake cannot be raised as a defense to a suit at law for the enforcement of the deed or contract, but is confessedly an exception to the parol evidence rule allowed in equity (32).

§ 110. No reformation in case of wills. It has been held that the clearest mistakes cannot be corrected by evidence of oral declarations in the case of wills, and there reformation is unknown. An Irish testator devised all his real estate situated in the county of Limerick. At the time of his death he had no real estate in the county

(32)

See Equity Jurisdiction, §§ 104-5, in Vol. VII of this work,

of Limerick, although he had considerable holdings in the county of Clare, and it was reasonably certain that it was these he intended to devise. Nevertheless, it was held that the mistake could not be corrected by evidence of these facts (33). The special difference between wills and other documents is that, by the time mistakes are discovered in a will, the testator has died, and with his death the instrument is beyond the power to change. It can be annulled if invalid, but there can be no middle course; it must be rejected altogether or enforced as it stands, and any mistakes made are irrevocable.

§ 111. Oral declarations in regard to public records. It goes without saying that public records come within the scope of the parol evidence rule. The proceedings of every public body, such as a city council, a court, or a legislature, are recorded by the duly constituted officer. In the case of legislative bodies, the minutes prepared by the clerk are approved by the bodies themselves, either with or without reading; and, in any event, when the procedure fixed by law has been followed, the record is conclusive in the absence of fraud. If the minutes of a city council show a given course of action at a stated meeting, not even a member of the council can thereafter be heard to say in court that the record was incorrect. There is an element of public policy in this rule. The community has a right to look to its governmental records for information in regard to the public matters recorded, and to rely on it. This reliance would be impossible, if the rec

(33) Miller v. Travers, 8 Bing. 244.