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So parol evidence would be admissible, no doubt, to enlarge or diminish the extent of the liability assumed for nonperformance, where it would be inadmissible to affect the scope of the promise. But these concessions do not affect the view here taken. As the relation of contractor and contractee is voluntary, the consequences attaching to the relation must be voluntary.
There were certain special contracts in the Roman system called real, which bound the contractor either to return a certain thing put into his hands by the contractee, as in a case of lease or loan, or to deliver other articles of the same kind, as when grain, oil, or money was lent. This class did not correspond, except in the most superficial way, with the common-law debts.
If the seller is introduced by the name B, and the buyer supposes him to be another person of the same name, and under that impression delivers his written promise to buy of B, the B to whom the writing is delivered is the contractee, if any one is, and, notwithstanding what has been said of the use of proper names, I should suppose a contract would be made. /1/ For it is further to be said that, so far as by one of the terms of a contract the thing promised or the promisee is identified by sight and hearing, that term so far preponderates over all others that it is very rare for the failure of any other element of description to prevent the making of a contract. /2/ The most obvious of seeming exceptions is where the object not in fact so identified, but only its covering or wrapper.
But when the facts are past and gone, such as the giving of a consideration and the receiving of a promise, there can be no claim to the resulting rights set up by any one except the party of whom the facts were originally true in the case supposed, the original contractee, because no one but the original contractee can fill the situation from which they spring.
If a man is induced to contract with another by a fraudulent representation of the latter that he is a great-grandson of Thomas Jefferson, I do not suppose that the contract would be voidable unless the contractee knew that, for special reasons, his lie would tend to bring the contract about.
It therefore not unnaturally happened that the judges, when they first laid down the law that there must be quid pro quo, were slow to recognize a detriment to the contractee as satisfying the requirement which had been laid down.
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