ORAL AGREEMENT. 465 



writing, and the plaintiff paid to the defendant £100, a part of the 

 consideration money, and sold with the defendant's consent a small 

 portion of the stock ; bat when Lord Sydney refused his consent, the 

 defendant tendered back the £100, which the plaintiff refused to accept. 

 It was held by the Court of Common Pleas that the evidence of the con- 

 temporaneous oral agreement was rightly received ; for that under the 

 circumstances the inference of fact was that the oral arrangement was 

 intended to suspend the written agreement, and not as a defeasance of 

 it ; and that it was not necessary for the plaintiff to produce or cause 

 to be produced at the trial the lease from Lord Sydney to the defendant, 

 referred to in the declaration. And per Curiam : " In Pym v. Cam2J'beU 

 (6 El. and Bl. 370, 25 L. J. (N. S.), Q. B. 277), and Davis v. Jones (17 

 C.B. 625 ; 25 L. J. (N. S.),C. P. 91), it was decided that an oral agree- 

 ment to the same effect as that relied upon by the defendant might be 

 admitted without infringing the rule that a contemporaneous oral agree- 

 ment is not admissible to vary or contradict a written agreement. It is 

 in analogy with the delivery of a deed as an escrow ; it neither varies 

 nor contradicts the writing, but suspends the commencement of the 

 obligation. The evidence shows that the defendant introduced the oral 

 agreement for his benefit, and has treated the written agreement as 

 suspended, having always retained possession of his farm. Also, the 

 subject matter of the two agreements is strong to show that the oral 

 suspended the written agreement from the beginning, and was not in 

 defeasance of it, for the written agreement was to assign, but the possi- 

 bility of assigning was supposed to depend on Lord Sydney's consent, 

 and the oral agreement that the written agreement should be void if he 

 did not consent, is in its nature a condition precedent. The defendant 

 in effect says, if I have the power to act, I will agree ; but if I have no 

 power to act, I will make no agreement at all (Wallis v, LiiteJl). 



Valuation agreement. — S, being possessed of a leasehold farm, entered 

 into an agreement with T,, whereby after reciting that T. had lent 

 him a certain sum of money and agreed to make him further advances, 

 it was agreed that the said sum, and such sums as should be further 

 advanced, should be repaid on the day mentioned, but if S, should not 

 then repay the same, S. agreed to assign the farm to T. for the residue 

 of the term without any fiu'ther consideration, together with the furni- 

 ture and stock at a valuation, and T. agreed to pay the amount of such 

 valuation, deducting therefrom the money advanced. The valuation 

 was afterwards made, and the plaintiff entered into possession, but the 

 defendant refused to receive the balance of the money, alleging that the 

 agreement was for a mortgage and not for a sale, and T. filed a bill for 

 specific performances. The Master of the Kolls considered that the 



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