Secondly. By oral evidence.—An oral contract, agreeing with that stated in the declaration, may be proved by any witness who was present at the time, or who heard the defendant admit the existence of such a contract. In two classes of cases, however, parol evidence is inadmissible: first, where the parties have condescended upon a written contract, for that is the best and only evidence of the intention of the parties, so long as it exists, that can be produced; and when it is lost, or in the hands of the defendant, who refuses to produce it after notice, secondary evidence is to be given of its contents: secondly, where written evidence of the contract is expressly required by the Statute of Frauds (ƒ). Where a party proposes to prove that which has been agreed on in writing, it is necessary to produce the writing as being the best evidence (g). In an action for use and occupation, it appeared upon cross-examination that there was an agreement in writing, which had not been stamped, and the plaintiff was nonsuited (h). The rule does not apply where a mere memorandum has been made in writing, preparatory to an agreement, but which has not been signed as an agreement (i). Upon the letting of premises to a tenant, a memorandum of an agreement was drawn up, the terms of which were read over, and assented to by him; and it was agreed that he should, on a future day, bring a surety, and sign the agreement, which he never did it was held that the memorandum was not an agreement, but a mere unaccepted proposal, and that the terms might be proved by parol evidence (i). So where a verbal contract is made for the sale of goods, and is put into writing afterwards by the vendor's agent, for the purpose of assisting his recollection, but the memorandum is not signed by the vendor, it need not (f) Infra. FRAUDS, STATUTE of. (g) See Vol. I. and Index, tit. BEST EVIDENCE, and infra. tit. PAROL EVIDENCE. In an action for work and labour in building, &c., it appeared that there was an agreement in writing, relating to the claim, and it was held that the plaintiff could not proceed without producing it, nor recover for items as extras proceeded on even after an admission by the defendant that they were such, and which the written instrument might furnish a means of ascertaining the amount to be paid for the course would be highly inconvenient if the Judge were to be called upon to look into it, to ascertain whether items alleged to be extras were or were not included in it. Vincent v. Cole, 1 Mo. & M. 257, and 3 C. & P. 481. Where, after the plaintiff had made out and closed his case, it appeared from the defendant's evidence that there existed a written contract, but which, for want of being properly stamped, he was unable legally to produce; it was held that the plaintiff could not be nonsuited for its non-production, upon the mere assertion of the defendant, since the written instrument, if produced, might have turned out not to apply to the contract in question. Fielder v. Ray, 6 Bing. 332, and 4 C. & P. 61. Where, in an action for work and labour in printing, the case was opened on the quantum meruit, without stating that there was a special contract; after which, the defend ant having proved that the plaintiff had (i) Doe v. Cartwright, 3 B. & A. 326. Proof of the contract by oral testi mony. From special circum stances. be produced (k). The plaintiff in ejectment having made out a primâ facie case, by proof of a payment of rent, and notice to quit, it appeared, upon cross-examination of his witness, that an agreement relative to the same land had been given in evidence on a former trial between the same parties, and had been seen the same morning in the hands of the plaintiff's attorney, the contents of which the witness did not know; no notice having been given by the defendant to produce that paper, it was held that the plaintiff was not bound to produce it; for although it was an agreement relative to the land it might not at all affect the question between the parties (1). Thirdly. Where the promise results from the special circumstances of the case, those circumstances must be proved; as, where the plaintiff declares upon a contract by the defendant, as his tenant, to use the farm in a husbandlike manner, according to the customary course of good husbandry in that part of the country, the plaintiff must prove that the defendant occupied the lands in question as his tenant, and the promise results as an inference of law from the premises (m). (k) Dalison v. Stark, 4 Esp. C. 163. See Doe v. Morris, 12 East, 236; 3 B. & A. 326. (1) Doe dem. Wood v. Morris, 12 East, 237. See also Doe v. Pearson, Ibid. 238, where in a similar case it appeared, on cross-examination of the plaintiff's witness, that an agreement as to the time of quitting did exist, and the objection that the plaintiff was bound to produce it was overruled by Chambre, J. And where the plaintiff, in an action for work and labour, proved his case, and the defendant's witness proved that a written agreement had been entered into, but had not been stamped, and the defendant had given no notice to produce it, it was held that the plaintiff's case was not disturbed. Stevens v. Pinney, 2 Moore, 439. Sed quære, the general rule seems to be, that where the subject-matter of proof is vouched by a written contract, it ought to be produced and proved by the party who relies on the contract. Where the master had undertaken, by the bill of lading, to deliver goods to the consignee on payment of freight, it was held that he could not maintain an action for not unloading in a reasonable time, on an implied contract. Evans v. Forster, 1 B. & Ad. 118. And see Brouncker v. Scott, 4 Taunt. 1. Where a party engaged to perform works under a written contract, during which a separate order was given for other work, it was held that it was not necessary to produce the written contract. Reid v. Batte, 1 Mood. & M. C. 413. In an action for not delivering goods, manufactured by the defendant in pursuance of an order signed by the plaintiff only, the precise terms of the contract, and the defendant's accession to it, may be proved by parol. Ingram v. Lea, 2 Camp. C. 521. An assignee of a lease, who has been compelled by distress to pay rent due before, the lessee having granted the lease by deed of assignment with the usual covenant for quiet enjoyment, cannot recover on an implied promise. Hamil, P. & D. 360. Baber v. (m) Powley v. Walker, 5 T. R. 373; Legh v. Hewitt, 4 East, 154. So in special actions against carriers, &c. where the alleged promise is a legal duty resulting from the nature of the particular service which the defendant has undertaken to perform, it is sufficient to prove the original undertaking. Nelson v. Aldridge, 2 Starkie's C. 435. Although (as it seems) the declaration allege a specific promise to do or omit that which in performance of the general duty, the defendant was bound to do or omit. Ibid. And therefore, where the declaration alleged an undertaking on the part of an auctioneer, employed to sell goods, not to rescind a contract made by him as such auctioneer, &c., it was held, that general evidence of employment was sufficient. Ibid. In Witherington v. Buckland, Cas. Temp. Hardw. 309, Lord Hardwicke is reported to have said, that where the plaintiff does not declare on any general custom, but on a special contract, the contract must be proved as laid. But in that case, where the plaintiff had declared on an undertaking to repair and enlarge a house, and particularly a certain room in the house called the club-room, it appeared that the defendant had been employed not by the plaintiff, but by an insurance company, except as to some alterations in the club-room, and therefore the plaintiff was nonsuited. Promises in law exist in those cases only where there is no special agreement between the parties. Per Buller, J. Toussaint v. Martinnant, 2 T. R. 100. An agreement to grant a lease contains no implied engagement for general warranty, nor for delivery of an abstract of the lessor's title. Gwillim v. Stone, 3 Taunt. 433. Temple v. Brown, 6 Taunt. 60; vide infra, VENDOR AND VENDEE. A party agreeing to let, virtually undertakes to give possession, and not a mere right of The plaintiff must establish his right of action, and contract, in evidence, Variance. as set forth in the declaration; and a variance in any circumstance that is essential to the contract will be fatal (n). It is now perfectly well established, that a misjoinder of plaintiffs is a ground of nonsuit, as also is a joinder of too many defendants; but that the omission of any party who jointly promised, must be pleaded in abatement (o). Where the action is brought by several, or against several, it must appear either that the promise was so expressly made, or that the plaintiffs in the one case, or the defendants in the other, were partners, and that the contract was made in behalf of all: this is a consequence which usually follows, from proof of the partnership itself (p). In order to establish the fact of partnership, it is sufficient even for the plaintiffs to prove that they have carried on business as partners, without proviug the partnership deeds. The allegation of a contract between the plaintiff and defendant, is proved by evidence of a contract made between their agents on their behalves (q). A contract alleged as between the plaintiff and defendant, is not proved by evidence of a contract between the plaintiff and a deceased partner with the defendant; but it is sufficient to prove that the defendant and a deceased partner made the contract with the plaintiff (r). Where the plaintiffs sue in a particular capacity, as where they sue as assignees of a bankrupt upon promises to the bankrupt, they must, under the general issue, prove their title to sue as assignees (s). The contract consists of the promise itself, and the consideration on Promise. which it is founded. A promise alleged absolutely is not supported by proof of a promise in the alternative (t). The allegation of a promise to deliver forty bags of wheat immediately, and the remainder of one hundred bags on the next market-day, is not supported by proof of a promise to deliver forty or fifty bags immediately, and the residue on the next marketday (u). So an absolute promise varies from a conditional promise (x). (0) B. N. P. 152; 2 M. & S. 23; 2 Str. 820. Wilsford v. Wood, 1 Esp. 183. A joint contractor must be sued, although he be a certificated bankrupt. Wood, 2 M. & S. 23. (p) See tit. PARTNERS. Bevil v. (q) See tit. AGENT. --PARTNERS.-SET-OFF.-VENDOR AND VENDEE. In general an action may be brought either in the name of the person with whom the contract was made, or in the name of the party really interested (Skinner v. Stocks, 4 B. & A. 437); and therefore jointowners of a vessel employed in the whalefishery may sue a purchaser of whale-oil, although the contract of sale was made by one of the part-owners, and the purchaser did not know any other person in the transaction. The statutes of set-off do not prevent the action from being maintainable in the names of all the parties interested. Ibid. So in case of policies (r) Richards v. Heather, 1 B. & A. 29. (8) See tit. BANKRUPT. In as (t) 8 East, 8; 2 B. & P. 116. (u) Penny v. Porter, 2 East, 2; 8 East, (x) Churchill v. Wilkins, 1 T. R. 447. Layton v. Pearce, Doug. 14. Promise. Variance. The allegation of a promise to pay the amount of a promissory note on the death of J. S., is not supported by proof of a promise to pay the amount on the death of J. S., provided he left the party sufficient, or he was able to pay it (y). Subject matter. So if the plaintiff allege a promise by the defendant to sell his tallow to the plaintiff at four shillings per stone, and prove an agreement by the defendant to sell his tallow to the plaintiff at four shillings per stone, but that if the plaintiff gave more to any other person, he should give the same to the defendant (z). An agreement to pay 20 l. if a given number should be drawn on a given day, varies from an agreement to deliver an undrawn ticket, or pay 20 l. (a). One of two pleas of usury stated the forbearance to be until September 1st, 1785; the second until January 1st, 1786. The evidence was an agreement of forbearance till either of those days; and it was held that the evidence did not support either of the pleas (b). So a variance as to the subject-matter contracted for will be fatal. A declaration on a promise to deliver good merchantable wheat, is not supported by evidence of an agreement to deliver good second-sort of wheat (c). A contract to deliver soil or breeze, varies from a contract to deliver soil (d). A contract to carry goods, and deliver them to A. B. the plaintiff, varies from a contract to carry goods and deliver them to J. S. (e). A contract to deliver so many bushels of corn varies from a contract to deliver so many bushels, according to a particular measure, which is greater than the Winchester measure, since by the bushel generally, the Winchester bushel must be understood (ƒ). It is no variance that the defendant promised some other distinct matter in addition to that alleged, since the proof supports the declaration as far as is requisite (g). It is true that the defendant did promise that which is alleged, although he further promised some other thing in addition; therefore a declaration on a contract to pay 527. 10s. for rum-money, is supported by proof of a note, by which the defendant undertook to pay the plaintiff 521. 10s., together with a pint of rum per day (h). So a promise to deliver a horse which should be worth 807., and be a young horse, is supported by proof of a promise to deliver a horse which should be worth 807., and be a young horse, with a warranty that it had never been in harness (i). It is no variance that a part of the contract has not been alleged which merely regards some collateral engagement as to the subject-matter of the contract. The declaration alleged that the defendant bought of the plaintiff a quantity of East India rice, according to the conditions of sale of the East India Company, at a specified price, to be put up at the next Company's sale, if required; and it appeared in evidence, that, in addition to those conditions, the rice was to be sold per sample; it was held that this was no variance, for it was not a description of the commodity, but a collateral engagement that it should be of a particular quality (k). (y) Roberts v. Peake, 1 Burr. 325. (z) Churchill v. Wilkins, 1 T. R. 447. (d) Cook v. Munstone, 1 N. R. 351. (f) Hockin v. Cooke, 4 T. R. 314. See the stat. 12 Hen. 7, c. 5; 22 Car. 2, c. 8. (g) Cotterell v. Cuff, 4 Taunt. 285. Tempest v. Rawling, 13 East, 630. For other instances, see tit. VARIANCE. (h) Baptiste v. Cobbold, 1 B. & P. 7. (i) Miles v. Sheward, 8 East, 7. (k) Parker v. Palmer, 4 B. & A. 387. The goods did not correspond with the samples, but after seeing the samples the In assumpsit, the consideration is of so entire a nature, that not only Consideramust it be proved to the extent alleged, but an omission to allege any part tion. is fatal; for if any part be omitted, then the basis of the promise is misdescribed. It is not true, as stated, that the defendant's promise was founded upon the consideration alleged, when it was in fact founded upon that and something else, which is also essential to its support (1). An averment that stock was to be transferred on request, is not proved by evidence that it was to be transferred on a particular day (m). An allegation of an executory consideration is not proved by evidence of an executed consideration, though it is otherwise where an executed consideration is alleged, and the law implies the promise (n). An averment that a note was given in repayment of monies paid, is not satisfied by proof of a note given to secure money to be paid (0). So if the moral obligation on which the action is founded is misdescribed (p), So where the declaration alleged an agreement to sell goods expected by the Fanny Almira, and the agreement proved was for the goods expected by the Fanny and Almira (q). So an agreement alleged to be for the delivery of all merchandisable skins, varies from the proof of a contract to deliver all merchandisable calf-skins (r). In an action against a carrier, if the contract be alleged to be to carry from A. to B., the termini are material, and must be proved as laid (s). defendant had taken upon himself the disposition of the goods, and had put them up to sale at a limited price, and bought them in again, and the Court held that after this he could not repudiate the contract; and the jury found that he had not repudiated the contract within a reasonable time; therefore the sale was in effect complete. So where the plaintiff declared that the defendant had agreed to buy of the plaintiff a large quantity of head-matter and sperm-oil, in the possession of the plaintiff, and the contract proved was for the purchase of all the head-matter and spermoil per the Wildman, it was held that there was no variance, for the allegations were proved as far as they went, and the additional matter proved (that it was oil by the Wildman) was immaterial; it did not qualify or annex any condition to what was stated. Wildman v. Glossop, 1 B. & A. 9. So if part of the contract has not been alleged, which merely regards the liquidation of damages after a right has accrued by a breach of the contract; for it is matter of evidence only in reduction of damages. Clarke v. Gray, 6 East, 564. In an action against a carrier it is not necessary to allege the limitation of his responsibility by notice. Ibid. See 1 Starkie's C. 267. In an action of assumpsit for breach of an agreement for the assignment of a lease, alleging that the defendant had no title to assign, held that it was no variance that the declaration did not set out a clause in the agreement restraining the plaintiff from carrying on a certain trade in general terms, that not forming any part of the consideration. M'Allen v. Churchill, 11 Moore, 483. (1) Swallow v. Beaumont, 2 B. & A. (m) Bordenave v. Gregory, 5 East, 111. 539. (p) The declaration alleged that the plain- (q) Boyd v. Siffkin, 2 Camp. 326. (s) Tucker v. Crachlin, 2 Starkie's C. 66 |