diate right? Does not such parol evidence contradict or vary the terms of the writing? There is no doubt that under these circumstances parol evidence is admissible.

Such evidence does not necessarily show that there is no contract at all, nor does it show that there is not yet any completed "legal act.""" There may be a parol contract between the parties, completed so far as to be irrevocable and creating either conditional or unconditional rights and duties. The operative facts all lie in parol; they are the acts of offer and acceptance, the parol expressions of agreement. Parol evidence must prove them and is admissible to prove all of them, including parol conditions. Such parol expressions are completed "legal acts" with the customary operative effect.

The mere existence of a written instrument, however, is never per se an operative fact; unaccompanied by words or other acts expressing some intention, it creates no legal relations. The mere writing and

"The use of the term "legal act" in Wigmore on Evidence, sec. 2404 et seq. seems highly objectionable. His reason for the rule allowing parol evidence to show that a document has been delivered subject to some parol condition is that there has been no completed legal act. "The act must be final in its utterance. It does not come into existence as an act until the whole has been uttered. As almost all important transactions are preceded by tentative and preparatory negotiations and drafts, the problem is to ascertain whether and when the utterance was final; because until there has been some finality of utterance, there is no act."

This analysis is unfortunate in two respects. The word "act" is used to include a large number of operative facts diverse in character, and secondly the implication is suggested that prior to the "final utterance" the preliminary facts and events have no legally operative effect. Austin's definition of "act" is much to be preferred. "The bodily movements which immediately follow our desires of them are acts." 1 Jurisp. 421. "External acts are such motions of the body as are consequent upon determinations of the will.” Ibid. 366. See adopting this usage, with like quotations from Justices Markby and Holmes, Professor Walter W. Cook, Act, Intention, and Motive in the Criminal Law (1917) 26 YALE LAW JOURNAL, 645. In accordance with Austin's simple and scientific definition of "act," the document is not an act at all, or any part of an act. Likewise, the condition upon which the document was to become operative may not be an act; and it is almost never an act of the person executing the instrument. It certainly should not be described as his "utterance." The occurrence of the condition, therefore, is not the completion of any act on the part of the contractor; nor are his preliminary acts inoperative to create new legal relations,-instead, they are themselves completed acts and each very often operates to create new powers and privileges and even rights and duties. The document may not yet be an operative fact in itself, and therefore does not prevent the preliminary acts and events from having their customary legal operation.

Wigmore's usage of the term "legal act" is followed by Kales, Considerations on the Art of Interpreting Writings (1918) 28 YALE LAW JOURNAL, 33, and by Aigler, Is a Contract Necessary to Create an Effective Escrow? (1918) 16 MICH. L. REV. 580.

signing of a document do not make it an operative fact; neither does the handing of it to another person to keep safely for the writer or to read and examine. The accompanying acts of the maker must always be proved in order to show what the legal operation of the instrument is, for these acts determine its legal operation. If A hands it to C saying: "Keep this for me," the document is not an operative fact. Its delivery, however, is such a fact, for it creates the rights and duties of bailment. If A says: "Deliver this to B. on payment of $5000," the delivery to C is again an operative fact; as before, it is a bailment, and along with the accompanying words it creates a power in C to make the document itself an operative fact by a new delivery to B. Prior to such new delivery the document is not an operative fact at all. In order that a written instrument may exclude any parol evidence whatever, it must be shown by other parol evidence that the parties acted in such a way as to express an intention to make the instrument an operative fact. If parol evidence is necessary to show that it ever had any operative effect, it is surely admissible to show that it never had any operative effect. And wherever the instrument is not itself an operative fact, parol evidence is always admissible to show what the really operative facts were and how they operate. Rights may be shown to be conditional irrespective of the terms of the inoperative instrument; parol terms can be proved in contradiction to the terms of such an instrument. Parol evidence becomes inadmissible to contradict or vary a written instrument only after other parol evidence has shown that the parties have constituted that instrument as in itself an operative fact.78

In Pym v. Campbell," a writing, apparently complete and properly signed, was delivered to the plaintiff, who offered it in evidence. The defendant was allowed to prove that it was delivered to be effective only in case A should approve of the invention that was the subject of sale, and that A did not approve. Nothing was said about A's approval in the writing itself. Erle, J. said: "If it be proved that in fact the paper was signed with the express intention that it should not be an agreement, the other party cannot fix it as an agreement upon those signing. The distinction in point of law is that evidence to vary the terms of an agreement in writing is not admissible, but evidence to show that there is not an agreement at all is admissible."

Some variation may exist here in the use of the word "agreement"; but it is clear that in its proper sense there was in fact an agreement in this case, there was a valid contract, and there were numerous completed "legal acts." The parol evidence shows that there had been

78 See Reed v. Reed (1918, Me.) 104 Atl. 227.

79

(1856, Q. B.) 6 E. & B. 370,, said by Wigmore, Evid. sec. 2410, to be the leading case.

acts of offer and acceptance indicating a true meeting of minds, that these acts had the same legal operation as in the making of any other contract, and that there was a valid contract made.80 It showed further that the terms of the contract as made were not identical with those written on the paper, and it most certainly contradicts and varies the terms of the paper. It is permitted to do this, however, for the reason that the paper itself is not yet an operative fact at all, and it is not an operative fact because the parties have in fact agreed that it shall not be. The rights of each party under the existing parol contract are conditional rights; the approval of A was made a condition precedent to the existence of immediate and instantly enforceable rights and duties. Had the formal document ever been agreed upon as the complete and final memorial of their agreement, it would then itself be an operative fact; the parol evidence rule would have caused it to operate to exclude proof that A's approval was to be a condition.81

It has been sometimes supposed that the parol evidence rule will permit proof of a condition precedent, but will exclude proof of a condition subsequent. Thus in a case holding parol evidence admissible to show that a deed placed in the hands of the grantee was to be ineffective until all the heirs signed,82 the court said: "but where the mutually understood intention was to give title immediately on delivery, subject to the condition subsequent that other heirs should sign, the non-performance of the condition cannot be set up to defeat the absolute terms of the deed. Of course, a condition subsequent is not effective." As shown heretofore, precedent and subsequent are relative terms. In the present connection it is correct to say that any fact can be proved by parol if it was agreed upon as a condition precedent to the document's becoming in itself an operative fact; but if it was not precedent to that, it cannot be proved in variance of the instrument, even though it may have been orally agreed upon as a condition precedent to the existence of instant rights and duties. Thus if A agrees to pay for a chattel on condition that X shall approve, the approval of X is a condition precedent to the duty to pay; and yet this condition could not be proved by parol in case A has delivered a written docu

61

See in accord, T. Baty, Loan and Hire, 6.

Other similar cases are Wallis v. Littell (1861) 11 C. B. N. S. 369 (assignment of a lease conditional on consent of landlord); Stanley v. White (1896) 160 Ill. 605, 43 N. E. 729; Wilson v. Powers (1881) 131 Mass. 539 (payee of note gave written extension, on the parol condition that the sureties should consent); Robertson v. Rowell (1893) 158 Mass. 94, 32 N. E. 898 (note delivered to payee on parol condition that X should indorse) Burke v. Dulaney (1894) 153 U. S. 228, 14 Sup. Ct. 816; Burns v. Doyle (1899) 71 Conn. 742, 43 Atl. 483; Chipman v. Tucker (1875) 38 Wis. 43; Bowser v. Fountain (1915) 128 Minn. 198, 150 N. W. 795. Like other conditions this kind of a condition can be waived. California R. G. Assn. v. Abbott (1911) 160 Cal. 601, 606, 117 Pac. 767.

ment referring to no such condition, with the intention of making the document instantly operative. The non-approval by X would indeed be subsequent to the delivery of an operative document; but the approval of X, if it could be proved at all, would be a condition precedent to any enforceable duty to pay. Whenever the document has not been agreed upon and delivered as in itself an operative fact, it excludes no parol proof whatever, of facts that operate either as conditions precedent or as conditions subsequent.

LAW IN EVOLUTION

A. G. KELLER

Professor of the Science of Society, Yale University

In the HARVARD LAW REVIEW for last November, Justice Holmes pays brief, genial, but illuminating respects to "Natural Law." He thinks that in all men there exists an ingenuous and naïve demand for a superlative "so much so that the poor devil who has no other way of reaching it attains it by getting drunk." In this world of relativities the soul strains after finalities and absolutes. "It seems to me that this demand is at the bottom of the philosopher's effort to prove that truth is absolute and of the jurist's search for criteria of universal validity which he collects under the head of natural law." It is evident enough that the Justice takes but limited stock in natural law as represented by such "collections." The implication of his writings is that law is evolutionary. In any case, this utterance of his affords an occasion for asserting and maintaining that contention.

The most accessible point on which to join issue is the term "natural." This term is under suspicion, and deserves it. About it has collected a clutter of intellectual rubbish, heaped up by the winds of doctrine and rooted at, from time to time, by the vagrant dialectician. We men have stock ways of concealing ignorance and of dissimulating indolence and prepossession. We have elaborate and pretentious modes of saying: "I do not know," or even, "I do not care to know." "It is easy," writes Darwin,1 "to hide our ignorance under such expressions as the 'plan of creation,' 'unity of design,' etc., and to think that we give an explanation when we only restate a fact." Camouflage is nothing new in the intellectual world, as is sufficiently indicated by the avidity with which the term has been seized upon as a metaphor. What is under the painted cheese-cloth this time?

In earlier and simpler ages men knew little and frankly referred the explanation of what they could not account for on the basis of concrete experience, to the world of spirits which, as they conceived of it, surrounded and permeated their existence. In so doing they regularly sought for an agent rather than a cause. The fellow-tribesman died of some disease; and the survivors asked forthwith, not what killed him, but who had done him to death-by witchcraft. How did the world and man come into being? Unkulunkulu made them. How did man acquire fire? Prometheus stole it from heaven. Where did the laws come from? Minos "gave" them.