Parol

' 1.

Anciently, the pleadings in a cause were viva voce, and thence called " the parol."

See Ore Tenus. 2.

Not committed to writing: that is, oral, verbal; also, -written but not sealed. At common law prior to the Statute of Frauds, no distinction was made between an agreement by word of mouth and an agreement in writing without a seal. " Oral " and " verbal " are less comprehensive. Parol agreement, contract, promise, xmdertaking. An agreement entered into 1 [2 Bl Com. 38; 40 N. J. L. 612. sperrinu N. T. Central K. Co., 36 N. T. 126 (1867). s People V. Green, B2 How. Pr. 445 (1873). < Holt V. Council of Somerville, 127 Mass. 413 (1879), F. parlement: parler, to speak, confer. See 1 Bl. Com. 147. 1 Bl. Com. Ch. II; Wharton's Law Diet. On Parliaby spoken words; also, an obligation not under seal. See Merger, 3.

Parol arrest

An anest ordered of a person violating the law in the presence of a judge, magistrate, or other officer of the peace; as, for an offense committed in open court.

Parol demurrer

A plpa interposed to stay proceedings in a real action until an infant party became of age.

Parol evidence

Evidence not in writing; in particular, evidence outside of a sealed instrument relating to the same subject-matter,— as, the oral negotiations of. parties who subsequently sign a statement of their reciprocal engagements. " Parol evidence is not admissible to vary or contradict the terms of a written instrument." The object of this rale is to protect the honest, accurate, and prudent in making contracts, against fraud and false swearing, carelessness, and inaccuracy, by furnishing evidence of what was intended by the parties, which can always be produced without fear of change or liability to misconstruction. Where an agreement is reduced to writing the intent and meaning of the same must be sought in the instrument which the parties have chosen as the repository and evidence of their purpose, and not in extrinsic facts and allegations." But the rule would become the instrument of the fraud it was intended to prevent, if there were no exceptions to the l Universality of its application. i Accordingly, it may be shown: that a deed, absolute on its face, is a mortgage; that a resulting trust exists; that a contract was without consideration, is void for fraud, illegality, or disability, has been modified as to time, place, manner of performance, or otherwise, or has been abandoned; what was the situation of parties — then- surroimdings, when the contract was made, thus applying it to the subject; that a joint obligor or maker of a note was a surety; that one accepted, made, or indorsed a bill or note for accommodation; that a contracting party was an agent; that a mortgage or judgment was assigned by parol.' Parol evidence of surrounding circumstances is admissible to show the subject-matter of the contract, when ambiguous or indefinite; but express terms cannot be varied by proof of the negotiations out of which it grew, and the circumstances which surrounded its adoption. In construing the contract, such evidence is receivable in order to ascertain the real intention of the parties, but no new obligation can be imposed which is not -ifarranted by a fair and reasonable construction of the language. The current of authorities shows that parol evidence is admissible in 1 Union Mutual Ins. Co. u.

Wilkinson, 13 Wall. 231 (1871), Miller, J. a Walden v. Skinner, 101 U. S. B84 (1879), cases, Clifford, J. Guaranty, &c.

— Co., 101 U. S. 631 courts of law only to aid in the construction of written contracts, admitted or proved;

— to ascertain ttie subject-matter;

— to show the real nature of the instrument;

— to explain latent ambiguities or indefinite terms;

— to give effect to general customs which do not contradict express stipulations; when the original contract was verbal and entire, and only a part of it reduced to writing; and to show a subsequent agreement, on a new consideration, varying the terms of the original contract.

The exceptions that relate to fraud, mistake, or accident usually arise in courts of ' equity, which have ample and elastic modes of procedure in administering adequate relief. Such courts will look beyond the written terms, consider the whole transaction, and hear parol evidence asto alleged fraud inducing or affecting the contract, if the person seeking relief has acted promptly upon discovering the fraud, and has not derived such benefits as to prevent the parties from being placed in statu quo. Proof of fraud in actions at law is restricted to narrower limits: the alleged fraud must affect the execution of the instrument. To remove such uncertainty as may arise from applying the written terms to the subject-matter, parol testimony is always admissible. Hence, all the circumstances out of which the contract arose may be shown.* The rule does not apply where part only of the original contract is reduced to writing; nor to a collateral undertaking; nor to a distinct subject-matter.* And a stranger is not prevented from introducing such evidence' To admit parol evidence to vary- the terms of an instrument for fraud in its procurement, there must be evidence of fraud other than that derivable from the ' mere difference between the parol and written terms. There must be fraud, accident, or mistake, established by clear, precise, indubitable evidence.* ' Beceipts, bills of lading, subscription papers, and other informal memoranda are excluded from the rule.' Parol lease. An oral agreement for the use of real property.

See Lease. See generally Fkaud, Statute, etc.; Reform; Seal, 1. > Chandler u Thompson, 30 P. E. 43 (1886), Dick, J. ' Stoops V. Smith, 100 Mass. 66 (1868), cases. Chapin u Dobson, 78 N. Y. 79 (1879), cases. * Graffam v. Kerce, 143 Mass. 388 (1887), cases. "Kellogg V. Tompson, 143 Mass. 77 (1886), cases; 1 Gr. Ev. § 279. "Thome v. Warfdein, 100 Pa. 526' (1883), Green, J. See-also Hopkins v. St. Louis, &c. B. Co., 29 Kan. 544, 550 (1883). See also Walz v. Ehodius,8r Ind. 4-11 (1882), cases; Martina v. Berens, 67 Pa. 462-63 (1871), cases; Kostenbader v. Peters, 80 id. 441 (1876), cases; Bast v.

First Nat

Bank of Ashland, 101 U. S. 96 (1879); Martin v. Cole, 104 id. 30 (1881) — as to an indorsement on a note; Tuley V. Barton, 79 Va. 393 (1884), cases; Hughes v.