THE NOTE OR MEMORANDUM IN WRITING. 19 



held, that as the plaintiff, by his answer to the defendant's 

 ofFer, stipulated that they should bear expenses to which he as 

 vendor was prima facie liable, he had added a new term to 

 those proposed, and, in the absence of an acceptance of that 

 term, there was no complete contract between the parties {d). 



On the other hand, however, two letters may be sufii- 

 ciently identical to constitute a contract, although the letter 

 of proposal may mention a term which is omitted to be 

 mentioned in the letter of acceptance (e). 



The terms of a written contract for the sale of goods, Terms cannot 

 falling within the operation of the statute, cannot be varied '^\^^^^ ^^ 

 or altered by parol ; and where a contract for the bargain 

 and sale of goods was made, stating a time for the delivery 

 of them, it was held by the Court of Exchequer that an 

 agreement to substitute another day for that purpose must, 

 in order to be valid, be in writing (/). So, also, where the 

 day appointed for the dehvery of goods was subsequently 

 discovered to be a Sunday, and it was then by word of 

 mouth agreed between the parties that the delivery should 

 be made on the " Monday or Tuesday " following : it was 

 held by the Court of Queen's Bench, that the enlargement 

 of time having materially varied the contract, and in fact 

 substituted a new one, an action for nondelivery could not 

 be maintained {g). But forbearance on the part of the 

 plaintiff is not a variation of the contract (A) . 



But though the terms of a written contract cannot be Bnt may be 

 contradicted, altered or varied by parol evidence, yet such explamed. 

 evidence is admissible to define what the written contract 

 has left undefined («) ; e.g., where it contains no date (A-), 

 or where its terms can only be given precision when ex- 

 plained by the sense which mercantile usage has put upon 

 them (J), or where the subject-matter of the contract can 

 only be ascertained by the admission of a conversation with 

 reference to it (ni). So, too, where goods are ordered by 



[d) Lewis ». Fedrick, 29 L. T., Q. B. 272, Ex. Ch. ; STL. J.,Q.B. 

 N. S. 178. 771. 



[e) MetzUr t. Gounod, 32 L. T., («) Per Erie, C. J., Lucas v. Bris- 

 N. S. 656. tow, El. Bl. & El. 913. 



(/) Marshall v. Lynn, 6 M. & (k) Davis v. Jones, 25 L. J., C. P. 



"W. 118: and see Woble v. TVard, 91. 



L. E., 1 Ex. 117; L. E., 2 Ex. {I) Lucas v. £ristow. El. Bl. & 



135, Ex. Ch. El. 907 ; Dale v. Sumfreij, El. Bl. 



{ff) Stead T. Dawber, 10 A. & E. & El. 1004. 

 67 ; and see Sickman v. JIaynes, (m) Macdonald v. Longbottom, 6 



L. R., 10 C. P. 598 ; 44 L. J., C. P. Jur., N. S. 724 ; Chadwick v. . 



358 ; 32 L. T., N. S. 873 ; 23 W. Uy, 12 W. R. 1077. See also £ux- 



K. 871. ton V. Rust, L. E., 7 Ex. 280, 281— 



[h) OglcY. Vane {Earl), L. E., 3 Ex. Ch., per Villes, J. 



c 2 



