to acknowledge payment or delivery, it is merely prima facie evidence of the fact, and not conclusive; and therefore the fact which it recites may be contradicted by oral testimony. But in so far as it is evidence of a contract between the parties, it stands. on the footing of all other contracts in writing, and cannot be contradicted or varied by parol.1 Thus, for example, a bill of lading, which partakes of both these characters, may be contradicted and explained in its recital, that the goods were in good order and well conditioned, by showing that their internal order and condition was bad; and, in like manner, in any other fact which it erroneously recites; but in other respects it is to be treated like other written contracts.2 We here conclude the Second Part of this Treatise. 1 Stratton v. Rastall, T. R. 366; Alner v. George, 1 Campb. 392; supra, § 26, note; Stackpole v. Arnold, 11 Mass. 27, 32; Tucker v. Maxwell, Id. 143; Johnson v. Johnson, Id. 359, 363, per Parker, C. J.; Wilkinson v. Scott, 17 Mass. 257; Rex v. Scammonden, 3 T. R. 474; Rollins v. Dyer, 4 Shepl. 475; Brooks v. White, 2 Met. 283; Niles v. Culver, 4 Law Rep. 72, N. s. "The true view of the subject seems to be, that such circumstances, as would lead a Court of Equity to set aside a contract, such as fraud, mistake, or surprise, may be shown at law to destroy the effect of a receipt." Per Williams, J., in Fuller v. Crittenden, 9 Conn. 406; supra, § 285. [A discharge on an execution is only a receipt and may be explained by parol evidence. Edgerly v. Emerson, 3 Foster, 555; supra, § 212. See also Brown v. Cambridge, 3 Allen, 474.] 2 Barrett v. Rogers, 7 Mass. 297; Benjamin v. Sinclair, Bailey, 174. In the latter case it was held, that the recital in the bill of lading, as to the good order and condition of the goods, was applicable only to their external and apparent order and condition; but that it did not extend to the quality of the material in which they were enveloped, nor to secret defects in the goods themselves; and that, as to defects of the two latter descriptions, parol evidence was admissible. See also Smith v. Brown, 3 Hawks, 580; May v. Babcock, 4 Ohio R. 334, 346; [Clark v. Barnwell, 12 How. U. S. 272; O'Brien v. Gilchrist, 34 Maine, 554; Ellis v. Willard, 5 Selden, 529; Fitzhugh v. Wiman, Ib. 559, 566; McTyer v. Steele, 26 Ala. 487. Where the payee of a promissory note, not negotiable, for $120, delivered it to a third person, and took back the following writing: "Received of A a note (describing it), for which I am to collect and account to the said A the sum of $110, when the above note is collected, or return said note back to said A if I choose ;' it was decided that parol evidence, which was offered to show that the note was held on other and different terms, was rightly excluded. Langdon v. Langdon, 4 Gray, 186, 188; Furbush v. Goodwin, 5 Foster, 425; Wood v. Whiting, 21 Barb. 190, 197. See also Alexander v. Moore, 19 Mis. 143; Sutton v. Kettell, Sprague's Decisions, 309.] [§ 305a. "The rule, that parol evidence is not admissible to vary or control a written contract, is not applicable to mere bills of parcels made in the usual form, in which nothing appears but the names of the vendor and vendee, the articles purchased, with the prices affixed, and a receipt of payment by the vendor. These form an exception to the general rule of evidence, being informal documents, intended only to specify prices, quantities, and a receipt of payment, and not used or designed to embody and set out the terms and conditions of a contract of bargain and sale. They are in the nature of receipts, and are always open to evidence, which proves the real terms upon which the agreement of sale was made between the parties. 1 Cowen & Hill's note to Phil. on Evid. 385, n. 229; 2 Ib. 603, n. 295; Harris v. Johnston, 3 Cranch, 311; Wallace v. Rogers, 2 N. H. 506; Bradford v. Manley, 13 Mass. 139; Fletcher v. Willard, 14 Pick. 464." By Bigelow, J., in Hazard v. Loring, 10 Cust 267, 268. The words, on a bill of parcels, 'consigned 6 mo." and "Terms Cash," may be explained by parol. George v. Joy, 19 N. H. 544. See Linsley v. Lovely, 26 Vt. 123.] [It may be shown that a bond, absolute in its terms, was intended as collateral security for the debt of third parties. Chester v. Bank of Kingston, 16 N. Y Court of Appeals, 336. So also that an option was intended to be left with one of the parties when the writing is silent. Chalfant v. Williams, 35 Penn. St. 212. But this latter seems questionable upon strict principle.] |