TIT. I.

PART II. 247-8; Ad. Con. 796-7.) And the parties to a contract could not by express words confer on the assignee of the contract a right to sue in his own name. Nor can they make it a negotiable instrument, so as to deprive the assignee of either the contract or the property represented by it, of his right to take back his property from anyone to whom a thief may have transferred it, even though that transferee took it bonâ fide and for value. (Crouch v. Credit Foncier of England, L. R. 8 Q. B. 374, 380, 387.) Policies of Life or Marine Assurance, however, were made assignable at Law. (See infra, Part III. Tit. II. Cap. IX.) And by the Supreme Court of Judicature Act, 1873, s. 25, clause (6), it is Enactment enacted that "Any absolute assignment, by writing under the hand of the assignor (not action, by purporting to be by way of charge only), of any debt or other legal chose in action, of which express notice in writing shall have been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be, and be deemed to have been effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee if this Act had not passed), to pass and transfer the

as to assign

ment of

debts and

choses in

the Judicature Act.

TIT. I.

legal right to such debt or chose in action PART II. from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same, without the concurrence of the assignor: Provided always, that if the debtor, trustee, or other person liable in respect of such debt or chose in action shall have had notice that such assignment is disputed by the assignor or anyone claiming under him, or of any other opposing or conflicting claims to such debt or chose in action, he shall be entitled, if he think fit, to call upon the several persons making claim thereto to interplead concerning the same, or he may, if he think fit, pay the same into the High Court of Justice under and in conformity with the provisions of the Acts for the relief of trustees." 230.

rules as to

which a con

to be evidenced and

When an agreement has been put into General writing, it must be proved by the writing the way in alone, or by that and any other connected tract ought with it, so far as it appears to be a complete construed. contract, without reference to any prior or contemporaneous verbal expressions which would alter, add to, or take away from its import, or show its meaning to be different from what its words import. But so far as on the face of it the contract is incomplete in some particular of price, time of delivery,

F

TIT. I.

PART II. &c., its deficiency may be supplied by parol evidence, unless that would be contrary to a statute. And a distinct collateral verbal agreement between the parties prior to or contemporaneously with the written agreement, and connected and not inconsistent with it, may be enforced, if otherwise valid. (Sm. Con. 35-6, 39; Broom Com. 371-2, 491; Ad. Con. 1019-1022; Best, 302; Powell, 388, 400-1; Rosc. 14, 15; Chit. Con. 95, 103-4; Harris v. Rickett, 4 Hurl. & Norm. 1; Lindley v. Lacey, 17 C. B. (N. S.) 578; Malpas v. London & S. W. Ry. Co., L. R. 1 C. P. 336; Morgan, app., Griffith, resp., L. R. 6 Ex. 70; Evans v. Roe, L. R. 7 C. P. 138; Angell v. Duke, L. R. 10 Q. B. 174.) 231.

An executory agreement, not under seal, may be shown to have been subsequently waived, annulled, added to or varied, even verbally, where a writing was not necessary in the first instance. But where by statute a written contract is necessary, the whole of the contract must be in writing; so that written contracts made pursuant to a statute cannot afterwards be varied or added to by word of mouth. And a deed cannot be revoked or discharged except by deed. (Sm. Con. 40-1; Broom Com. 371-2, 374; Powell,

TIT. I.

388-392; Ad. Con. 1021, 1025-6; Rosc. 22, PART II. 23; Chit Con. 104; Noble v. Ward, L. R. 1 Ex. 117; 2 Ex. (Ex. Ch.) 135; see supra, par. 258.) 232.

In the case of patent ambiguity, i.e., an ambiguity apparent on the words themselves, no parol evidence is admissible to remove it. But in the case of a latent ambiguity, i.e., an ambiguity which lies concealed, but is made to appear by parol evidence, such evidence is admissible to explain it, as well as to raise it as when it appears that there are two persons or things of the same name. (Sm. Law of Prop. 5th ed. par. 2523; Best, 302-5; Powell, 405; Rosc. 23, 24; Chit. Con. 100-1; Ad. Con. 1025-6.) 233.

In many cases, even at Law, extrinsic evidence may be resorted to; either in support of deeds, by showing a sufficient consideration, if not inconsistent with the deed; or by way of defence against written instruments, when obtained by duress, menace, fraud, illegality, or mistake. (Best, 306; Rosc. 17, 18; Chit. Con. 107; Ad. Con. 235; Sm. Con. 168; Broom Com. 350, 351, 354, &c.) 234.

Where parties have contracted with reference to some established usage known to them, the contract is construed with reference to such usage, so long as it is not inconsis

TIT. I.

PART II. tent with the express language of the written contract. (Sm. Con. 45-8; Broom Com. 498-9, 502, 504; Ad. Con. 1027; Powell, 408-410; Rosc. 18-21; Chit. Con. 80, 89, 90, 96, 100, 105; Bowes v. Shand, L. R. 2 Ap. Cas. 455.) And the meaning of the words used may be explained by evidence, where they are terms of business, art, or science, or where, though they may be words in general use, they have a peculiar signification among a particular class of persons, as well as a popular meaning. (Sm. Con. 54, 58; Broom Com. 496–500, 504; Ad. Con. 10278; Chit. Con. 78, 80, 100; Myers v. Sarl, 3 Ell. & Ell. 306; Bowes v. Shand, L. R. 2 Ap. Cas. 455.) Extrinsic evidence may also be resorted to for the purpose of annexing to a written contract that which constitutes an ordinary incident (according to common sense, or by the common law, or by the usage of trade, or by the custom of the country, of which the parties may be presumed to have been cognizant), provided it is not inconsistent with the terms of the written instrument. (Broom Com. 500-1; Ad. Con. 1027; Powell, 410; Rosc. 16-18; Chit. Con. 97, 105; Field v. Lelean, 6 Hurl. & Norm. 617.) 235.

An incident may be annexed to a contract