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to the promise and gives the inducement for making it. When the explanation of the reason for the promise is at variance with the promise itself, the latter, if clear and unambiguous, must prevail, as it is the transaction between the parties."

When a written agreement consists of both written and printed matter and these portions are in conflict, the part which is typewritten or in manuscript will govern the construction of the agreement. In many written agreements wherein a definite time for delivery is stated, there is also a printed clause that "all agreements are contingent upon strikes, fires, accidents, or delays beyond our control." Even when this clause may be regarded as having been incorporated into the agreement, it will, nevertheless, be lacking in efficacy if it be interpreted as inconsistent with the written part of the instrument.

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$139. Loss of Written Agreements.-The loss or destruction of an unsealed writing has never been held, except in the case of a negotiable instrument, to extinguish the rights which are evidenced by it. It does not follow, however, that the disappearance of such a writing is always a matter of no consequence. Everybody knows that the loss or destruction of a writing frequently deprives the owner of his most convenient and convincing evidence. What is not so generally known is the pedantic extreme to which an occasional court will sometimes extend the so-called "best evidence rule." According to this doctrine, one who wishes to establish the terms of a writing of any kind must ordinarily produce the original writing, or a duplicate original" thereof, unless he is able satisfactorily to account for its non-production, in which case he is permitted to introduce sec

'Williams v. Barkley (1900), 165 N. Y. 48, 57.

'It has been held that the presence of such printed matter above the letter-head of a sheet of paper upon which the agreement is written is not sufficient evidence of a mutual intent to incorporate it as a part of the agreement, unless the printed matter be referred to in the body of the agreement. Summers v. Hibbard (1894), 153 III. 102.

1A letter-press reproduction of a writing is held to be merely Secondary evidence, but, by the weight of authority, a carbon copy is an original. International Harvester Co. v. Elfstrom (1907), 101 Minn. 263. Where a writing is drawn up in duplicate, or multiplicate, each party taking one of the parts, it is well settled that each of the parts is a "duplicate original."

ondary evidence (such as a copy of the writing or merely oral evidence). To satisfactorily account for its non-production, he must prove either that it is in the possession of the adverse party, who, after having been served with seasonable notice to produce it, declines so to do, or that it has been lost or destroyed without a fraudulent purpose. As regards a destruction voluntarily made by the owner, it is held properly enough that failure to produce the original will not be excused unless the owner repels every inference of a fraudulent design in the destruction. This is as far as this disciplinary rule can be extended without violating good sense, and yet there are a few extreme decisions to the effect that if the original has been lost or destroyed through mere carelessness the owner may not prove its contents by secondary evidence.

§140. Alteration of a Written Contract.-"No man shall be permitted to take the chance of committing a fraud without running any risk of losing by the event when it is detected."1 This is the reason assigned at the present time for the rule that a fraudulent alteration of a written agreement of any kind discharges the obligations of all parties originally liable upon it, except one who has made or consented to the alteration. According to its more recent development, however, the rule against alteration does not apply to immaterial alterations. An alteration is deemed immaterial whenever it does not change the legal effect of the writing; for instance, if it consists of the correction of a mistake in spelling, or the addition of words more specifically describing a person or thing named in the writing; or the insertion of such words as the law would imply.

Although material alteration of documents is properly frowned upon by the law, it seems plain on principle that alteration should have legal consequences only when the underlying reason for the rule so requires. The decisions on the whole recognize this limit to the operation of the rule. For instance,

1Master v. Miller (1791). 4 T. R. 320, 329, per Kenyon C. J. "The Negotiable Instruments Law ($124) modifies this as follows: "But when an instrument has been materially altered and is in the hands of a holder in due course, not a party to the alteration, he may enforce payment thereof according to its original tenor."

if a writing is altered with the assent of all parties, the document in its altered form is treated as valid. Similarly, it is very generally held in this country, contrary to the English law, that an alteration in a writing made by a stranger is a mere trespass or spoliation, and without effect on the rights of the holder.* Alteration by the owner does not prejudice his rights if it was made accidentally or under a mistake of fact. The decided weight of authority in this country takes the same view even of an intentional alteration if the one claiming under the instrument is able to repel every inference of a fraudulent design on his part. For example, if the alteration is clearly proved to have been for the purpose of expressing the agreement more clearly or of correcting a real or supposed mistake, it would generally be treated as an excusable alteration."

In case a material alteration has been fraudulently made, practically all courts in this country deny a recovery in any form of action either on the instrument itself or on the consideration for which the instrument was given. The relatively few courts which are committed to the doctrine that even an innocent alteration vitiates the instrument, grant a measure of relief to the innocent owner of the writing by permitting him to recover the value of any benefit which the other party has derived from the bargain.

PRACTICE PROBLEMS

(a) Action by landlord against tenant for rent due under the terms of a written lease of certain business premises. Prior to the execution of the lease the landlord had written defendant a letter stating that he would re-paint the building if the rent should be fixed at the rate stated in the lease instead of at a lower rate. Defendant entered into possession of the premises but left before the expiration of the term because of the landlord's refusal to paint the building. Is

To avoid ground of suspicion, and to facilitate proof, such alterations in writing should be authenticated by the signatures or the initials of all the parties.

"The Negotiable Instrument Law unfortunately seems to embody the harsher English doctrine. See Neg. Inst. L. §124.

"The Negotiable Instruments Law apparently enacts that even an innocent alteration by the holder prevents recovery on a negotiable instrument. subject to the exception that a holder in due course may enforce it according to its original tenor.

the landlord's letter evidence which will be admitted by the court? See Spear v. Hardon, 215 Mass. 39.

(b) Suppose that at the time of the execution of the lease it had been orally agreed between the lessor and lessee that the lease should terminate in case the lessee should be unsuccessful in his negotiations for the purchase of the entire stock of goods of another dealer. Would this oral agreement be admissible in evidence when the lessor sues to recover rent under the lease?

(c) A, a manufacturer, submitted to B a typewritten offer to sell ten motor trucks of his make at a specified price, and stating a definite time for delivery. At the bottom of the first page on which this offer was made there appeared in fine type the printed clause, "All agreements are contingent upon strikes, fires, accidents, or delays beyond our control." The typewritten numeral denoting the first page of the offer was written over a part of this clause. After B accepts A's offer he wishes to know whether the printed clause will excuse A from liability for a delay in delivery caused by a strike. See B. F. Sturtevant Co. v. The Fireproof Film Co. (1915), 216 N. Y. 199. How can the printed limiting clause be unquestionably incorporated into the agreement?

(d) A and B made a contract which provided that A was to sell and B to buy one hundred tons of pig iron to be delivered in four equal monthly instalments. The contract was in writing, and required so to be by the Statute of Frauds. A found himself unable to make deliveries of the iron according to the terms of the agreement, and at his request B orally consented to extend the time for the delivery of the iron. Subsequently, however, B refused to live up to his oral promise, and maintained that he was free from liability of the original contract because A's non-compliance with its terms. What are the rights of the parties?

(e) A written construction contract contained a clause to the effect that no change made in the contract should be binding unless made in writing. Later the parties orally agreed that the builder should make certain changes in the contract and should receive additional compensation therefor. What are the rights of the parties?

$141. Special Rules Applicable to a Contract by Deed.-It has been the English law ever since the time of Henry II that the execution of a writing under seal, that is, a deed, gives rise to certain unique consequences. The superior validity of transactions effected by a deed may plausibly be defended on the ground that the solemnities and formalities which are requisite to its execution ensure a much higher degree of reflection and delib

eration than are usually present in dealings of a more informal kind. In truth, however, it was the primitive formalism of mediæval English law which gave the deed its sanctity.

It is possible to use the deed for a great variety of transaction. Contracts of every description, transfers of property of all kinds, and the appointment of agents may be made in this form. On the other hand, however, the transactions which must be made by a deed are but few. As regards agreements, commonlaw doctrines required a deed only when an agreement was made without a valuable consideration. Such legislative enactments as have required a seal for certain other kinds of agreements have been merely sporadic in character, for, obviously, the most technical of all instruments is ill-adapted for ordinary business purposes. A conveyance of an interest in real estate is the only transaction which is rather commonly required by statutes to be made by a deed.1

According to legal nomenclature, a deed which imposes an obligation is a "specialty." A specialty may be either a "covenant" or a "bond." As lawyers use the word, a "covenant” is a specialty which contains a contract, that is, a promise by one of the parties, or mutual promises. A "bond" is a sealed obligation to pay money; generally it takes the form of an acknowledgment of indebtedness, with a provision that the obligation is to be void upon the happening of a specified event or the performance of a specified condition."

At this point it is our purpose to consider, first, the formalities which are essential to the execution of a deed as such; and, second, the rules of law peculiar to contracts by deed. During the past century the subject has become one of ever-lessening importance, because in most jurisdictions the doctrines of the classic common-law as to the nature and effect of a contract under seal have been radically changed.

'Inasmuch as this is the principal use of the sealed writing today, the word deed has come to mean in popular usage a sealed conveyance of real estate.

If the sum mentioned in the bond is in the nature of a penalty, the obligation will not nowadays be enforced strictly in accordance with its terms. The maximum amount which the obligee may recover is the actual damage he has suffered from the non-performance of the condition.

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