ORIGINAL ENTRY.
A full opinion laid down some general rules in relation to the use of the ballots as evideuce in an election contest, which present the law in that regard in a very terse and lucid form. It holds (1) that one who has received a certificate of election to office is not estopped in case of contest from going behind the returns from ballot boxes which were counted without objection by either party, and which formed the basis of the cer tificate; (2) that in an election contest, the ballots of a certain box, which had been opened before a legislative committee after the election, are admissible when it appeart that the opportunity for the ballots to have been tampered with was a mere possibility ; and (3) that the fact that a discrepancy ex ists between the returns of the votes counted from that 'ballot box 'and a recount made by the court in an election contest does not in dicate that there was any alteration in the ballots after being voted, nor tend to cast suspicion thereon, when the evidence shows that, when the count was concluded by 'the election officers, there were discrepancies be tween the tally sheets of the different clerks of the election,'Which it was attempted to ree'-. oncile at the result, and making changes accordingly ; Henderson v. Albright, 12 Tex. Civ. App. 368, 34 S. W. 992. See ELECTION. I Proof by witnesses. The testimony of wit nesses is called oral evidence, or that which, is given viva voce, as contradistinguished from that which is written or documentary. Testimony is oral evidence as distinguished from documentary or written. Proof is the effect of evidence and evidence is the means or medium of proof ; Elliot, Ev. § 9, and cas es cited. It is a general rule that oral evi dence shall in no case be received as equiva lent to, or as a substitute for, a written in strument, where the latter is required by law ; or to give effect to a written instru ment which is defective in any particular which by law is esseutial to its validity ; or to contradict, alter, or vary a written in strument, either appointed by law, or by the contract of the parties, to be the appropriate and memorial of the particular facts it recites ; for by doing so, .oral testi mony would be admitted to usurp the place of evidence decidedly superior in degree ; Christ v. Diffenbach, 1 S. & R. (Pa.) 464, 7 Am. Dec. 624 ; Querry v. .White, 1 Bibb (Ky.) 271; Stackpole v. Arnold, 11 Mass. 30, 6 Am. Dec. 150; Barber v. Brace, 3 Conn. 9, 8 Am. Dec. 149 ; Chemical Electric Light Power Co. v. Howard, 150 Mass. 496, 23 N. E. 317 ; Butler v. Trust Co., 122 Ga. 371, 50 S. E. 132; Colton v. Vandervolgen, 87 Ind. 361; Chari ton Ice Co. v. Ice Co., 129 Ia. 523, 105 N. W. 1014; O'Connor v. Green, 60 App. Div. 55.3, 69 N. Y. Supp. 1097; Town of Kane v. Far relly, 192 Ill. 521, 61 N. E. 648 ; Milwaukee Carnival Ass'n v. King Co., 112 Wis. 647, 88 N. W. 598 ; Northern Assur. Co. v. Building Ass'n, 183 U. S. 308, 22 Sup. Ct. 133, 46 L. Ed. 213 (where many cases are considered), criticised, 15 Harv. L. Rev. 575 ; but this rule does not apply in suits between persons not parties to the writing ; Williams v. Fish er, 8 Misc. 314, 28 N. Y. Stipp. 739 ; Clapp v. Banking Co., 50 Ohio St. 528, 35 N. E. 308 ; Brown v. Thurber, 77 N. Y. 613 ; Kellogg v. Tompson„ 142 Mass. 76, 6 N. E. 860.
But parol evidence is admissible to defeat a written instrument, on the ground of fraud, mistake, etc., or to apply it to its proper sub ject-matter, or, in. some instances, as ancil lary to such application, to explain the meaning of doubtful terms, or to rebut pre sumptions arising extrinsically. Such evi dence is admissible if the contract was ob-, tained by fraud; .Cass v. Brown, 68 N. H. 85, 44 Atl. 86; Cushwa v. Imp. Loan & Bldg.
Ass'n, 45 W. Va. 490, 32 S. E. 259 ; McCrary v. Pritchart1,419 Ga. 876, 47 S. E. 341; Moore v. Harmon, 142 Ind. 555, 41 N. E. 599 ; or false ren'resentatibus ; Machin v. Trust Co., 210 Pa. 253, 59•Atl. 1073 ; Davis v. Driscoll, 22 Tex. Civ. App. 14, 54 S. W. 43 ; or if the written contract is ambiguous or obscure so that the intent of the parties cannot be as certained; Jacobs v. PaTpdi, 50 Fla.,541, 39, South. 833 ; Leverett v. Bullard,' 121 Ga. 49 S. E. 591; Stone v. Mulvaine, 217 Ill: 40, 75 N. E. 421; Gregory v. Lake Linden, 130 Mich. 368, 90 N. W. 29 ; but the ambiguity must be a latent one ; Okie v. Person, 23 App. D. C. 170 ; Hogan v. Wallace, 166 111. 328, 46 N. E. 1136; Camden & T. R. Co. v. Adams, 62 N. J. Eq. 656, 51 Atl. 24; Armstrong v. Ferguson, 54 N. Y. 659 ; if patent on the face of the deed, parol evidence is not admissible ; Storer v. Freeman, 6 Mass, 435, 4 Am. Dec. 155 ; Holman v. Whitaker, 119 N. C. 113, 25 S. E. 793 ; Gatewood v. Burrus, 3 Call (Va.) 194. Where the contract is obscurely ex pressed, so that a knowledge of the subject matter and relation of the 'parties becomes necessary, parol evidence, as to that, may be admitted ; Black River Lumber Co. v. War ner, 93 Mo. 374, 6 S. W. 210; so also it may be admitted to show the meaning of words used, where they have some other than the ordinary sense ; Richmond Union Pass. R. Co. v. R. Co., 95 Va. 386, 28 S. E. 573 ; McIntosh v. Miner, 53 App. Div. 240, 65 N. Y. Stipp. 735; Wilcox v. Baer, 85 Mo. App. 58/ ; or the identification of parties, where that does not appear certain by the instrument, as that the grantees in a deed were husband and wife ; McLaughlin v, Rice, 185 Mass. 212, 70 N. E. 52, 102 Am. St. Rep. 339 ; Aplin v. Fisher, 84 Mich. 128, 47 N. W. 574 ; or that the words "bodily heirs" meant children ; Edins v. Murphree, 142 Ala. 617, 38 South. 639; or that one of the contractors was a partnership and not a corporation ; Hubbard v. Chappel, 14 Ind. 601; or where the identity of the parties is not clear ; Haskell V. Tukes bury, 92 Me. 551, 43 Atl. 500, 69 Am. St. Rep. 529 ; or .where a signature is made with in itials only ; Sanborn v. Flagler, 9 Allen (Mass.) 474; or to establish the liability of an undisclosed principal ; City Trust, Safe Deposit' & Surety Co. of Philadelphia v. Brewing Co., 174 N. Y. 486, 67 N. E. 62 ; Smith v. Felter, 63 N. J. L. 30, 42 Atl. 1053 ; Heywood Bros. & Wakefield Co. v. Andrews, 89 111. App. 195 ; Belt v. Power Co., 24 Wash. 387, 64 Pac. 525; contra, Vail v. Life Ins. Co., 192 111. 567, 61 N. E. 651; Finan v. Bab cock, 58 Mich. 301, 25 N. W. 294; David Be lasco Co. v. Klaw, 48 Misc. 597. 97 N. Y. Supp. 712 ; or whether the •otes were made by individuals or a firm ; In re L. B. Weis enberg & Co., 131 Fed. 517 ; Huguenot Mills v. George F. Jenmson & Co., 68 S. C. 363, 47 S. E. 687, 102 Am. St. Rep. 673 ; Markham v. Cover, 99 Mo. App. 83, 72 S. W. 474 ; Daugh erty v. Heckard, 189 Ill. 239, 59 N. E. 569 ; or where two persons have the same name ; Simpson v. Din, 131 Mass. 179 ; or there is a mistake or variance in the name ; Hicks v. Ivey, 99 Ga. 648, 26 S. E. 68 ; or where evi dence is necessary to identify the subject= matter; 2Etna Ins. Co. v. Strout, 16 Ind. App. 160, 44 N. E. 934 ;' Axford v. Meeks, 59 N. J. L. 502, 36 Atl. 1036 ; and, in some cases, evidence of conversations the par ties during negotiations is competent to show the construction of the contract ; Hart v. Thompson, 10 App. Div. 183, 41 N. Y. Supp. 909 ; or to explain an ambiguity ; Sabin v. Kendrick, 58 App. Div. 108, 68 N. Y. Supp. 546 ; Wright v. Gas Co., 2 Pa. Super. Ct. 219; Wussow v. Hase, 108 Wis. 382, 84 N. W. 433 ; but not to change the terms of the contract ; Hart v. Hart, 117 Wis. 639, 94 N. W. 890.