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Exceptions Noticed

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EXCEPTIONS NOTICED.

(a) Where all the terms have not been put in the writing, parole evidence of the supplemental terms is admissible as completing the contract. (Lyon v. Lenon, io6 Ind. 567; Mobile, etc. v. Jurey, III U. S. 584.) An example of a collateral term allowed to be proven by parol is cited by Anson, where a fanner made a lease upon the parol promise by the lessor that the game upon the land should be killed down, and he was allowed damages for the breach of this promise, though it was not mentioned in the lease. (Anson on Cont. 245.) Such collateral agreements will be ad mitted if it be not contrary to the written agreement. (Walker v. France, 113 Pa. St. 203; Keen v. Beckman, 66 Ia. 672.) (b) The explanation of the terms of a written con tract may be necessary to identify parties, as to show the position which a contracting party occupies, as an agent, partner, and the like. (Leach v. Dodson, 64 Tex. 185.) Or to identify the subject-matter of the contract. (Barrett v. Murphy, 14 Mass. 133; Thomp son v. Stewart, 6o Ia. 223.) Or to show the applica tion of a phrase, where a vessel is warranted as "sea worthy," a house promised to be kept in "tenantable" repair, and the like, parol evidence is admissible to show what the parties intended by these phrases. (An son on Cont. p. 246.) (c) A written contract may be explained by parol evidence of a local custom or usage, though a term is thereby added, or a different meaning given to one of its terms. (Lowe v. Lehman, 15 Ohio St. 179; Brown Chemical Co. v, Atkinson, 91 N. C. 389; Swift Iron & Steel Co. v. Drury, 37 0. St, 242.) The custom or usage to be admissible must not be at variance with the express terms of the contract, or re pugnant to statutory law. (Mansfield v. Inhabitants, 15 Gray, 159.) Or against public policy, or unreason able or oppressive. (Raisin v. Clark, 41 Md. 158; Penna. Coal Co. v. Sanderson, 94 Pa. St. 302.) And words of manifest and clear import should not be given an unnatural meaning. (Lawson on Usages & Cus toms, p. 434; Hedden v. Roberts, 134 Mass. 138.) (d) Where an offer has been made through a mis take, or a written agreement is made and through mu tual mistake a term of the contract is contrary to the intention of the parties, it may be shown by parol evi dence That the real agreement of the parties was differ ent. (Webster v. Cecil, 3o Beay. 62.) The equity courts will rectify a mutual mistake in a deed or writing, and make the document conform to the true intention of the parties, and for this purpose oral evidence is admis sible. (Fowler v. Fowler, 4 D. & J. 25o.) If the mis take is not mutual, oral evidence will be admitted only in cases having an element of fraud in them, as where the mistake was caused by the party in whose favor it operated, and was known to him before the contract changed his position. (Anson on Cont. p. 25o.)

contract, terms, parties and evidence