transaction outlined was not complete, the whole transaction may be proved. Oral evidence may always be introduced to show fraud, duress, undue influence, or illegality in the contract. The rules of evidence may even be stretched in such a case to allow the proof of other transactions not directly connected with the contract under consideration, tending to prove a fraudulent contract.

Admissions. A party will never be allowed to use his own statements and acts unconnected with the actual contract or the transactions leading up to it, to prove that there was a contract, or that what he claims as to its terms is true, but he, however, may prove anything which the other party said against his own interest, and must also show any other statements made in connection with the admission which might have limited its effect.

Where a party employs an agent to deal for him, any admission against the employer's interest which the agent made at the time of, or during the transactions leading up to, the contract, may be used against the employer; but not admissions which the agent made after the execution of the

contract.

Books of Account. Books of account regularly and fairly kept as books of original entry supported by oath are admitted as prima facie evidence of the entries therein contained.2

If the clerk who made the entries is dead his handwriting may be proved.

The rules in regard to admitting books of account as evidence are as follows:

1. They must be regularly kept in due course of busi

I.

2.

ness.

The entries must be made by the party or an authorized clerk at or about the time of the transactions.

2 Jones on Evidence, Vol. III, § 567.

3.

The books must be identified by oath.

4. The entries must be pertinent to the issue.

5. The books must come from proper custody.

These rules apply only to books of original entry, not to ledgers and other books footed from original entries.

The books of a deceased person may be used as evidence both for and against him. The books, however, must first be properly proved by the clerk who made the entries or by someone who can testify as to the handwriting of the deceased.

Transactions with a Party Later Deceased. In order to protect estates against fraud, where a person is suing to enforce a contract against the executor or the administrator of a person who is dead, he will not be allowed to testify to any transactions with the deceased person, where there were no other witnesses present to testify as to what the deceased person said or did. This is very important to remember, because, in the case of an oral contract where no witnesses were present, the party who is still living might not be able to prove the contract at all; and this is another reason why all contracts should be reduced to writing.

Notes:

I. The burden of proof is on the party who makes an assertion.

2. Any evidence, in order to be introduced, must have some direct bearing on the contract itself, or on the transactions connected with its making and discharge.

3.

Parol evidence cannot be introduced to vary the terms of a written contract except in case of fraud, duress, undue influence, or illegality; or where the contract is not complete in itself or its terms cannot be understood without reference to outside circumstances.

I.

2.

4. A party cannot use his own words and acts as evidence in his favor; but his admissions against his own interest may be used against him.

5. A party may not testify to his transactions with a deceased person where no other witnesses were present.

REVIEW QUESTIONS

What is the rule as to actions where there are joint parties to a contract?

Does a person bringing suit have to prove that the agreement was fair and that the defendant went into it voluntarily? Why not?

3. When can a person be compelled to carry out a contract? In what court would such a suit be brought?

4.

Can you give three "rules of equity"?

5. What is the difficulty in proving oral contracts?

6.

In a suit who has the "burden of proof"?

7. What is the rule as to parol evidence? What exceptions to this rule?

8. What is the rule as to transactions with a man who has since

died?

9. What is an admission?

10.

What is meant by the rule, "Hearsay evidence is excluded"?
Illustrate.

II. What is relevant evidence?

13. State the rules as to admission of books of account as evidence

in court.

14. When are books of account of a deceased person admissible

evidence?

CHAPTER XIII

TENDER OF PAYMENT OR PERFORMANCE

$76. Definition

When a person is prevented by the other party to the contract from carrying out his part of it, he may make sure of his own rights under it by tendering (that is, offering) to pay or to perform. The offer must be made by the party himself, or by someone he has authorized, at the time the contract was due to be performed, and either at the place specified in the contract for goods, etc., to be delivered, or directly to the other party or any agent he has appointed to receive them. For instance, if the other party had ordered goods to be delivered to a railroad company, the goods might be offered to the railroad as an agent authorized to receive the goods. It is safer, however, to offer them to the party himself, as then no question can arise as to the validity of the tender.

Where there are bulky goods, the person desiring to make the tender may ask the other party to name a place where they are to be delivered, and, if he fails to do so, may notify him that the goods will be delivered to him at a certain time and place most convenient for that other party. Then delivery at that time and place will be good tender although the other party is not there to receive the goods.

§ 77. Time to Tender Performance

The tender must be made at the exact time specified in the contract, and before sunset on that day, in order to give the other party a chance to examine the goods, etc. A tender

before the time for performance has arrived does not meet the requirements for a tender and will not save the rights of the party making it. If the contract specifies "on or about" a certain day, or "within" a certain time, a tender made a few days before the day set would be good. If a party cannot make the tender before sunset because the other party has remained away all day, he may make it as soon as the other party returns.

If a party positively states that he will not accept a tender under any circumstances, or has the party making it put off his premises, or refuses to hear him, it is not necessary to make the offer. The party from whom tender is due may explain to the court, and will be excused. Unless it is absolutely certain that it will be impossible to make a tender, however, the party should at least try to make it. Only the absolute certainty that the attempt would be useless will excuse him.

$78. Extent and Kind of Tender

The exact amount of goods or money called for by the contract, including any interest due, and, if the other party has begun an action or suffered any damages, his expenses or the damages due, also must be offered. If it is money, the party should take care that it is in "legal tender." This really means, as a usual rule, that too much small change should not be offered. Five-cent pieces are a legal tender up to $5 and not over, while silver coins less than one dollar are a legal tender up to $10 and not over. United States treasury notes, gold coins, and silver dollars are a legal tender to any amount. Ordinary bank notes are not legal tender, but, unless objected to at the time, a tender in bank notes would be good.

If it is not possible to ascertain the exact amount, the party should take care to offer more than enough, as too little will not make a good tender.