Page:Harvard Law Review Volume 12.djvu/95

THE PRESENT AND FUTURE OF EVIDENCE. 75 Let me, in part, illustrate what I mean. There is a great bulk of cases, constantly added to, which are referred to what is known as the " parol evidence rule." Generally speaking this rule, relat- ing to documents of the solemn and formal kind, undertakes to secure to them their proper legal operation as against less formal extrinsic acts and utterances of the writer. " Parol con- temporaneous evidence," we are told, " is inadmissible to contra- dict or vary the terms of a valid written instrument."^ Now so crudely-conceived and so ill-digested is the mass of matter under this head, which every day and many times a day our courts are called on to interpret and apply, that, in reality, vastly the greater part of it, almost all of it, has no proper place in the law of evidence, being chiefly made up of rules in the substantive law of documents, such as wills and contracts, and of rules of construction and inter- pretation. What is the result of this ? Utter confusion of thought, and frequent injustice in decision. Of course when men are, in reality, discussing a question in the law of partnership, agency, or bankruptcy; or the grounds and scope of equity jurisdiction in dealing with fraud, mistake, trusts, or the reforming of docu- ments ; or the rules for the construction and interpretation of lan- guage ; and yet, out of an imagination that they are dealing with rules of evidence, go on to clothe their ideas in the phraseology of that subject; although a right result may be reached, it is not rightly reached, and bewilderment attends it. There is a ques- tion, let us say, of reforming a will by inserting words which are not in it ; the decision is disguised by saying that parol evidence is not admissible for this purpose ; whereas, if the purpose were legitimate the evidence would be good enough. There is a ques- tion of denying operative effect to a contract in writing which has been signed, is in the hands of the other party, and is in form com- plete ; the question is. Have you a legal ground of action or defence in saying that it was not to go into effect till the happening of some event which has not happened, and was not named in the writing? This is called a question of admitting parol or extrinsic evidence. There is a question of whether you can set up the defence of mistake in a common-law action, or whether you must go into equity. That is called a question of admitting parol evi- dence. There is a question of whether an undisclosed principal can sue or be sued on a written contract signed only by his agent's 1 Greenl., Evid., i. s. 275, quoting Phil, & Am. Evid.