baker v pain may article of agreement rectify by the minute admission of  parole evidence where fraud or surprise the plaintiff captain of a India ship  vide Ves sen by article of agreement bargain and sell to defendant all his  Nina ware and merchandise which he bring home in his last voyage covenant that  he be the real proprietor and have a right to sell and shall allow deduct or  pay to defendant all the custom duty allowance and charge that shall be take  out of the say bargain premise those allowance amount in the whole to fortysix  and a half per cent pay to the company on the vesey senior captain private  trade in respect of warehouseroom c or of the duty to the crown two ship have  be take on return home the good happen to sell for a much high price than they  have agree on the captain bring this bill for a account of what be due on this  contract the material question be whether the plaintiff ought to bear all  deduction and allowance that be to be make to the extent only of that sum he  be to receive on his private contract with defendant or whether he be to bear  it on the whole price the good shall sell for at the company sale by inch of  candle plaintiff counsel admit the article as pen be against he so as to  oblige he to pay on the whole sum but the real contract and intent be that he  shall pay the fortysix and a half per cent only on the price he be to receive  by his private contract with defendant who shall bear the deduction on the  surplus price for which the good sell because that be all profit to himself  and it appear by the minute and the calculation make by themselves at the time  that this be contrary to the intent and a mistake by the drawer which be a  head of relief in this court and to this parole evidence be offer to be read  object to for defendant for by this mean the mere allegation of mistake will  let in parole evidence in contradiction to any agreement and defeat write act  the presumption be the whole agreement be comprise in that deed therefore  though the court lean against objection of this kind which prevent information  yet this will contradict the rule of evidence always adhere to unless there be  fraud in the vesey senior er p deed the court will not add to the write  agreement in a case mich on a agreement about a lease which the defendant  agree to let at so much clear of tax the defendant be a unlettered person who  add his mark the tenant draw it but omit to insert that clause and bring a  bill to carry it into execution the defendant prove that it be the intent it  shall be clear of tax but the court say that if the bill have be bring by the  defendant to carry into execution the objection will be more material as that  will be to add to the agreement join v Statham atk on which case see the  observation of lord Rosslyn and Lord Eldon c bro and Ves see further  supplement p Lord chancellor how can a mistake in a agreement be prove but by  parole evidence it be not read to contradict the face of the agreement which  the court will not allow but to prove a mistake therein which can otherwise be  prove it may therefore be read note parole evidence admit to prove word take  down in write be contrary to the concurrent intention of all party brown where  the agreement be not insert in the deed as the transaction will appear  usurious parole evidence of this refer to contradict the deed as the agreement  be not charge to have be omit by fraud brown vesey senior for plaintiff it be  then urge that by such a agreement as this the more his good sell for the less  he shall receive nay they may sell at so high that he shall be money out of  pocket and parole evidence be read to show the usage videlicet that the buyer  usual lie all the charge on the surplus price above what be contract for the  defendant bid for the good himself and nod to the auctioneer and since offer  plaintiff money by way of compromise for defendant though by this agreement  the more plaintiff good sell for the less he will receive he can not be out of  pocket for though the word pay be insert in the article which will indeed be a  foundation for a action of covenant to compel payment of the whole deduction  it be by mistake of the drawer for in the minute it be only deduct and equity  will relieve but this be a contract on a risk or chance on both party and its  have fall out in favour of defendant be no reason to vary the agreement which  must be take as at the time unless fraud appear if in all contingent contract  the risk must be equal it will bring more business than the court can know  what to do with have a small advantage be gain it will not be set aside and  the quantum will not vary it suppose a ship insure at a great price be miss  have never sail but be safe in port all the time so that the underwriter run  little risk yet on a bill to have the prize return on foot of mistake the  court will not relieve No fraud be prove and little weight be to be lie on the  offer to plaintiff Lord chancellor it be impossible to say this case be free  from obscurity and every case of this kind will be attend with some plaintiff  may be entitle to a decree for account but it must be accord to what be his  real agreement to be sure it be very extraordinary that a agreement shall be  make for sale of good which good must by law be sell at another public sale to  ascertain the real price and that the more the good be sell for and the great  profit the buyer shall make the less the seller shall receive for those good  such a agreement may indeed be make but it be extraordinary though it be not  likely to happen yet possible the good may sell so high that the seller may be  oblige to pay money out of his pocket beside lose the whole price of the good  it be admit there be a mistake by draw it so as that a action of covenant will  lie and then the question be whether equity will relieve but l do not think  the drawer of the article have pursue the intent of the minute in other part  beside the vesey senior insert the word pay in the minute it be not say that  all shall be charge on the bar gain premise which import the good sell but  charge c that may be take out of the produce of the say china ware which be a  ambiguous expression not so determinate as the other as it may refer to the  account the party make up themselves which be to be regulate de to make new  and this be a great variation in the word and sense then I be of opinion these  minute must be take to be the agreement of the party and if any material  variation as be admit for defendant the article must be rectify the question  then be what be the true sense of the minute all contract of this kind depend  on the usage of trade and be so allow not only in this but in commonlaw court  on mercantile contract relate to insurance c court of law examine and hear  witness of what be the usage and under vesey senior er p stand of merchant  conversant therein for they have a style peculiar to themselves which be short  yet be understand by they and must be the rule of construction the material  evidence to afford a rule from fact and usage will be to show how the account  have be make up and the allowance make by the captain on one side and the  buyer or dealer in china on the other and the plaintiff have prove by several  witness the amount of which be that suppose the captain previous to the sale  agree to sell part of his private trade for pound on which all the charge  amount to pound the seller be to pay that but if the sale shall amount to  pound the buyer usual pay the advance whereas the evidence on the part of  defendant amount to nothing in this case not swear to a question of fact what  allowance or in what manner account be make up which be material but only to  the form and expression of the contract as to the objection of the risk it be  true say in all contract of risk that it be no reason to vary or put a  different construction on the agreement which must be take at the time but  here that argument be not ad idem for the risk in this case be not at all to  be apply to the deduction or allowance which be a know and certain charge of  and a half per cent as to the subsequent misbehaviour of defendant no  intentional fraud be to be infer but it be sufficient f r this purpose that to  make another construction will put it in the buyer power to play such trick  and it be not material to inquire whether it be do or not the offer defendant  be material though general speak offer by the party by way of compromise be  not to have much weight in the merit of the case nor to be make use of yet in  case of this kind where the contract be doubtful pen and to be explain by  usage those offer may have weight but vesey senior as to the risk of the two  ship be take that I suppose be a risk not consider by any party the minute  must be take to be the agreement the article be not pen agreeable thereto  therefore the minute ought to be expound accord to the usage of trade which be  prove to be as plaintiff insist defendant evidence prove nothing of the fact