A memorandum, made by one of the parties to an oral contract, reciting the terms of the agreement, does not preclude oral evidence offered by the other party to show what the contract was.12

$10,000 held properly admitted, where the contract was incomplete. Bair v. School Dist. No. 141, Smith County, 146 P. 347, 94 Kan. 144.

Though parol evidence cannot be received to vary or contradict a complete written contract, it is applicable to a brief memorandum on its face mani-. festly incomplete to show the complete agreement. Heskett v. Border Queen Mill & Elevator Co., 105 P. 432, 81 Kan. 356.

Where a writing is incomplete, and shows that all the stipulations between the parties are not included in it, parol proof of the omitted parts, not inconsistent with the written portions, may be introduced to supplement that which is written. Evans v. McElfresh, 116 P. 612, 85 Kan. 389.

A written memorandum signed by both parties to a sale of land, merely stating where it is located, and when and how the payments shall be made, will not preclude evidence of parol contemporaneous statements of the vendor, relied on by the vendee, of the quality and condition of the land, and improvements thereon. Schoen v. Sunderland, 18 P. 913, 39 Kan. 758.

Where an agreement to pasture cattle did not state the age of the cattle, nor whether they were quiet, parol evidence is admissible to show that the owner represented the cattle to be such as could be kept within inclosures. Erie Cattle Co. v. Guthrie, 44 P. 984, 56 Kan. 754.

A written contract for the sale of a threshing machine contained a general warranty that it was well made and with proper management capable of doing the work for which it was made and sold. There was nothing in the contract to show the nature of the machine or the purpose for which it was made and sold. Held, that parol evidence was admissible to show that it was made to be used to thresh all kinds of grain. Nichols & Shepard Co. v. Maxson, 76 Kan. 607, 92 P. 545.

Where the interest of a purchaser at a sheriff's sale is transferred to another, to whom the sheriff's deed is made, and the deed, otherwise in proper form, does not contain a recital of such transfer, the fact may be shown by extrinsic evidence. Austin v. Ballard, 114 P. 1084, 84 Kan. 619.

A subsequent agreement reciting a misunderstanding as to the original contract, and covering matters not embraced it it, held not to preclude either party from showing that certain property wrongfully invoiced as personalty and not mentioned in the latter contract, was to be regarded as realty. L. & M. Mercantile Co. v. Wimer, 146 P. 1162, 94 Kan. 573.

*

In an action against a surety upon a recognizance conditioned that "defendant will be and appear before said court * and not depart without leave," in the absence of journal entries showing defendant to have been present during the whole trial and sentence, the surety may show this by parol evidence. Moorehead v. State, 16 P. 957, 38 Kan. 489.

Directions by depositor accompanying deposit, as to credit to be given, held provable. Fidelity & Deposit Co. of Maryland v. State Bank of Holton, 139 P. 370, 91 Kan. 740.

12 Carter Oil Co. v. Garr (Okl.) 174 P. 498.

§ 1029. Minutes

Oral evidence is admissible to show that something happened at a corporation meeting about which the record is silent, or incorrect in detail.13

A record of the proceedings of the county commissioners which the county clerk is required to keep is conclusive and cannot be . varied by parol evidence in a collateral proceeding."

14

The journals of the Legislature, showing that a bill has passed, cannot be contradicted by the stenographic notes of one of the official reporters to the effect that the bill did not pass, but was indefinitely postponed.15

§ 1030. Wills

Extrinsic evidence is admissible to explain latent ambiguities in a will and to perfect imperfect descriptions of beneficiaries or subject-matter of gifts, but no evidence is admissible to vary the testator's express intent, which must be decided from the will itself, assisted by such extrinsic evidence, and, where the evidence is to be employed merely as an aid to the court in determining the intent and that intent cannot be found, the gift must lapse.16

13 Parol evidence is admissible to show that a motion was carried at an annual school meeting to sell certain lumber, where the minutes, kept under Rev. Laws 1910, § 7800, fail to mention same and show on their face that they are a mere abstract of what occurred at the meeting. Gilmer v. School Dist. No. 26, Noble County, 136 P. 1086, 41 Okl. 12, 50 L. R. A. (N. S.) 99.

Parol evidence is admissible to show that a resolution of the board of directors of a railroad company, entered on the record of their proceedings, did not correctly recite the amount of money found due and ordered to be paid to one of its officers. St. Louis, Ft. S. & W. R. Co. v. Tiernan, 15 P. 544, 37 Kan. 606.

14 Cobb v. Alberti, 38 Okl. 296, 132 P. 1075.

15 McNeal v. Ritterbusch, 116 P. 778, 29 Okl. 223.

16 In re Dominici's Estate, 90 P. 448, 151 Cal. 181.

Under Civ. Code, §§ 1318. 1340, where the meaning of a will is clear on its face and no latent ambiguity appears, there can be no evidence of extrinsic circumstances to show that the testator desired to do something not expressed. In re Willson's Estate, 153 P. 927, 171 Cal. 449.

Where extrinsic evidence is admissible to aid in the construction of doubtful language of a will, the evidence is limited to such purpose, and, under Civ. Code, § 1340, it may not show a different intent or a different object from that disclosed by the will itself. In re Donnellan's Estate, 127 P. 166, 164 Cal. 14.

Testatrix provided in her will that "two deeds" should be handed to her husband, and that after his death they should go to another. Held, that parol

A latent ambiguity may arise either when a will names a person as the object of a gift or a thing as the subject of it, and there are two persons or things that answer the name or description, or

evidence to show what deeds were meant is inadmissible, as explaining a patent ambiguity. In re Young's Estate, 55 P. 1011, 123 Cal. 337.

Certain words in a will held to involve no latent ambiguity to be resolved under Civ. Code, § 1340, but to be construed in view of the circumstances under which the will was made, excluding testator's oral declarations pursuant to section 1318. In re Womersley's Estate, 127 P. 645, 164 Cal. 85.

Testator gave his residuary estate to his sister J. and to his nephew S. "and his sister, my niece, all residing in" L., Germany. By codicil he recited that his sister J. was dead, and gave her share to "the other two residuary legatees therein named, S., and to his sister, my niece, whose name is K. and whose residence is S., Germany, share and share alike." S. had an only sister, who, at the time of. the making of the will and codicil, was a resident of L., and the testator had a niece, the married daughter of another sister, whose name was K., and whose residence was S. Held, that the will presented a latent ambiguity within Civ. Code, § 1340, permitting extrinsic evidence to correct imperfect descriptions in wills, etc., and not a patent ambiguity within section 1318, requiring the court to ascertain the intention of a testator from the words of his will and the circumstances under which it was made. In re Dominici's Estate, 90 P. 448, 151 Cal. 181.

Evidence that testatrix, before making her will, in which she devised land in a certain county to her grandchildren, had sold the land, and had not owned any other land so situated up to the time of her death, is inadmissible to show a mistake. In re Callaghan's Estate, 51 P. 860, 119 Cal. 571, 39 L. R. A. 689.

Under Civ. Code, § 1318, providing that, in case of uncertainty arising upon the face of a will as to the application of any of its provisions the testator's intention is to be ascertained from the words of the will, taking into view the circumstances under which it was made, exclusive of his oral declarations, the question whether a devise by a testatrix of the residue of her estate to her three nephews named, in equal proportions, was intended as a devise to the nephews as a class, so that, upon the decease of one of them without lineal descendants, the estate would descend to the survivors of the class, is an issue of fact, upon which parol evidence of the circumstances attending the making of the devise is admissible. In re Langdon's Estate, 62 P. 73, 129 Cal. 451.

The statute is a limitation on the general rule that, in case of a latent ambiguity in a will, the same may be removed by any evidence or declarations of testator, and it will not be extended beyond its actual language, and applies only to the incidental utterances or declarations of intent as distinguished from specific instructions given to an attorney in drawing a will. In re Dominici's Estate, 90 P. 448, 151 Cal. 181.

Where there are two or more persons or things measuring up to the description and conditions of a will, or where no person or thing answers the declarations and descriptions, extrinsic evidence is admissible to remove the ambiguity. In re Donnellan's Estate, 127 P. 166, 164 Cal. 14.

Bequest to "the Woman's Christian Temperance Union of Los Angeles," which did not exist, in view of other existing corporations of similar name,

when the will contains a misdescription, as where there is no such person or thing in existence, or if in existence is not the one intended, or the thing does not belong to testator.17

Declarations of the testator, which are not a part of the res gestæ, are inadmissible to show her testamentary intention, whether made before or after the will.18

Where a will recited that testator made it as his last will, showing on its face he signed with testamentary intent, though his signature was below that of the subscribing witnesses, evidence of the valid execution is admissible despite the objection that it was to show testamentary intent.19

In construing a will, a former will which was revoked cannot be considered.20

§ 1031. Surety and guaranty

Parol evidence is competent to show that one whose name appears on a promissory note as a joint maker signed such note only as a surety.21

held ambiguous within Civ. Code, § 1340, and, on extrinsic evidence, bequest to "the Woman's Christian Temperance Union of Southern California." In re Little's Estate, 170 Cal. 52, 148 P. 194.

Evidence as to the existence and identity of the person named in a distribution decree, and in a will, entitled to an estate subject to a conditional limitation, is admissible. Taylor v. McCowen, 99 P. 351, 154 Cal. 798. 17 Taylor v. McCowen, 99 P. 351, 154 Cal. 798.

18 In re Snowball's Estate, 107 P. 598, 157 Cal. 301.

Evidence of declarations made by testator after the execution of the will is inadmissible on the question as to who were intended as testator's nieces. In re Holt's Estate, 79 P. 585, 146 Cal. 77.

In action by servant of testatrix against executrix for compensation, defended on ground that bequest to servant in will was in lieu of compensation, a letter from testatrix to executrix was inadmissible for purpose of explaining bequest, or of qualifying effect thereof, being hearsay. White v. Deering, 38 Cal. App. 433, 177 P. 516.

Evidence of what the testator said, just before his death, to his executor, as to what was intended by the will, and who wrote it, the declarations having been made five years after the making of the will, is inadmissible in a proceeding to construe the will. In re Gilmore's Estate, 22 P. 655, 81 Cal. 240.

19 In re Dutcher's Estate, 157 P. 242, 172 Cal. 488. 20 In re Vanderhurst's Estate, 154 P. 5, 171 Cal. 553.

21 Stovall v. Adair, 60 P. 282, 9 Okl. 620.

Under Rev. Laws 1910, § 1051, held that plaintiff was entitled to show that, though he appeared to be a principal, he was in fact a surety on a note. Wills v. Fuller, 47 Okl. 720, 150 P. 693.

Where a stranger to a note writes his name across the back, parol evidence is admissible to vary his apparent liability as guarantor by showing the agreement and understanding of the parties at the time of the indorsement.22

In an action on a guaranty of a contract of a consignee, conversations between the consignor and the consignee prior to the guaranty are inadmissible to enlarge the guarantor's liability.23

Where a stranger, who intended to become a guarantor of a note, placed his name by mistake on the face of the note, the holder may show the facts by oral evidence, for the purpose of holding the surety on his original undertaking.24

Where, in an action by the holder of a negotiable note against one whose name is written on the back below the indorsement of the payee, it is alleged that plaintiff acquired the note by purchase before maturity from the payee, and that such person whose signature appears after that of the payee on the back of the note is in fact a joint maker thereof, parol evidence is admissible to prove the nature and extent of the contract entered into by such apparent indorser,25

§ 1032. Agency

A principal may sue on a written contract made by his agent in his own name, and evidence may be admitted to show that the principal was the real party in the action, notwithstanding the rule of law that an agreement reduced to writing may not be contradicted or varied by parol evidence.26 Such evidence is admissible to bind the principals or give the benefit of the contract to them, or, to

22 Fullerton v. Hill, 29 P. 583, 48 Kan. 558, 18 L. R. A. 33.

23 Pease Piano Co. v. Matthews, 48 P. 449, 5 Kan. App. 370.

24 Miller v. Kenigsberg, 57 P. 246, 9 Kan. App. 29.

27

25 Commercial Nat. Bank of Steubenville, Ohio, v. Atkinson, 62 Kan. 775, 64 P. 617.

26 Rankin v. Blaine County Bank, 93 P. 536, 20 Okl. 68, 18 L. R. A. (N. S.) 512.

27 Nutt v. Humphrey, 3 P. 787, 32 Kan. 100.

In an action on a note signed by a corporation with the names of the president and secretary, evidence is admissible to show that the note was the obligation of the company, and not of the president and secretary individually. Western Grocer Co. v. Lackman, 88 P. 527, 75 Kan. 34.

Where the note is executed by the board of trustees of a corporation, extrinsic evidence is admissible between the original parties to show that such trustees executed the note in their official capacity, with the intention of all