ÆäÀÌÁö À̹ÌÁö
PDF
ePub

The danger of permitting parol declarations to be proved which were so nearly related to the subject-matter of the written warranty was strongly pressed as an evil which the rule of evidence already stated seemed especially designed to prevent.

But the distinction between such representations as add to the contract and such as avoid the contract, because of their fraudulent character, is too firmly established in our jurisprudence to be now shaken. As an additional warranty, that is, as an addition to the contract, the present representations were clearly inadmissible. So soon, however, as they displayed such features as went to show that through them the contract had been fraudulently induced, and so was unenforceable, for that reason, at the election of the defrauded party, the rule excluding parol testimony to enlarge a written contract became inoperative. It is, of course, obvious that the fact that there. was a written warranty in respect to the soundness and kindness of the animal would be a forcible argument that no other representations as to quality were made. The existence of the written warranty would be useful in determining the probability of the truth of the counter-statements of the parties as to the existence or non-existence of the parol declaration; but when the fraudulent affirmation is once proven to exist the written contract becomes unimportant. This seems to be an elementary principle of the law of evidence. The right to prove fraud, in whatever shape it may exist, to avoid written contracts, has been so uniformly recognized that it can hardly be said to have been the subject of serious judicial discussion.

The power to consider parol evidence, in regard to its effects upon contracts in respect to the question of fraud, has been passed over sub silentio, and the courts have gone on to consider the probative force of the testimony. No case was discovered by the industry of counsel which excluded such testimony, and all the cases in which judges have touched upon the subject have assumed the admissibility of testimony setting up fraudulent representations to avoid a written contract. Dobell v. Stevens, 3 Barn. & C. 623; Hotson v. Browne, 9 C. B. (N. S.) 442; Steward v. Coesvelt, 1 Car. & P. 23; Koop v. Handy, 41 Barb. (N. Y.) 454; Prentiss v. Russ, 16 Me. 30; Van Buskirk v. Day, 32 Ill. 260; Eaton v. Eaton, 35 N. J. Law, 290.

I conclude, therefore, that if the evidence established fraudulent conduct on the part of the defendant the testimony was properly admitted. [Reversed on another ground.]

CHARLES MULVEY MFG. CO. v. MCKINNEY.

(Appellate Court of Illinois, 1914. 184 Ill. App. 476.)

BAKER, P. J.20 *

* The owners of certain real estate demised portions thereof to Albert L. Berry by ground leases made on and prior to April 1, 1907, for terms ending in 1937. April 29, 1907, Berry en

20 A portion of the opinion is omitted.

tered into a contract in writing, which began with a recital that it was made by Berry of the first part and the complainants in the bill, appellees here, of the second part, but was signed only by Berry, the complainant corporation, W. H. Gervais and W. H. Barry. By this agreement Berry agreed to lease a portion of the land so leased to him to the parties of the second part for a term of ten years from June 1, 1907, at a rental of $2,000 per year, payable in monthly instalments of $166.66 each on the 5th day of each month, and to erect a two-story building containing an area of 8,800 square feet on the premises. The parties of the second part agreed to pay to Berry $2,000 in instalments, the last instalment to be paid when the building was ready for occupancy, which sum, the writing provided, should be applied in payment of the rent for the tenth year of the term unless Berry desired to apply it on the rent for some prior year. The writing further provided that for the $2,000 Berry should give his note bearing interest at five per cent., “up to the beginning of the year which it shall apply as payment of the rent,” and also that said note should be in the nature of a receipt for the year's rent. The Mulvey Company advanced to Berry $2,000 and received from him the following receipt:

"Chicago, July 1, 1907.

"Received of the Chas. Mulvey Mfg. Co. two thousand dollars for rent of Building 1335 35th street, Chicago, same being rent in advance for said premises as described between Chas. Mulvey Mfg. Co. et al., from Albert L. Berry.. Albert L. Berry."

The writing further provided that the parties of the second part should issue to Berry the note of the Mulvey Manufacturing Company for $4,000, payable in three years, indorsed by W. B. and L. L. Gervais, W. H. and P. E. Barry and E. L. Beckerleg, bearing interest at six per cent., which note, the writing stated, was given for the purpose of assisting Berry to secure funds for the erection of said building. A note made and indorsed as provided in the agreement, dated July 1, 1907, and payable three years after date, with interest at six per cent., was delivered to Berry. It later came into the hands of appellant McKinney, who brought suit on it against the maker and indorsers July 15, 1910.

The bill alleged, the evidence proved and the court found that prior to the assignment of the lease by Berry to McKinney, Berry orally promised the complainants that in case they or any one of them should be required to pay said note, the amount so paid should apply on rent under said lease coming due after three years from the date thereof. * * *

The note for $4,000 was an accommodation note and the maker and indorsers have therefore no defense to it. It is held by McKinney and he has put it in suit. Berry has filed a voluntary petition in bankruptcy and it is certain that the maker or indorsers will have to pay the note. Berry, as has been said, orally agreed with the maker and indorsers before the lease was made, that if any one of them had to pay the note

the amount so paid should apply on rent under the lease coming due after three years from its date. Appellant contends that testimony of said oral promise was inadmissible because it tends to vary and contradict the terms of the written lease. No rule is better settled than that parol testimony cannot be received to vary, contradict, add to or take from the terms of a valid written instrument. But this rule is not violated by allowing testimony of a distinct, valid collateral, contemporaneous or antecedent agreement between the parties which was not reduced to writing, where the same is not in conflict with the terms of the written instrument.

In discussing this rule, Taylor in his treatise on the Law of Evidence says (section 1038): "The rule does not prevent parties to a written instrument from proving that either contemporaneously or as a preliminary measure they had entered into a distinct oral agreement on some collateral matter. Still less, as will presently be shown, does the rule exclude evidence of an oral agreement which constitutes a condition on which the performance of the written agreement is to depend."

The same author says (sections 1049-1157): "It is almost superfluous to observe that the rule is not infringed by proof of any collateral parof agreement which does not interfere with the terms of the written contract, though it may relate to the same subject-matter." See also Greenleaf, § 284a; Lindley v. Lacey, 17 C. B. N. S. 578, 112 E. C. L. 578; Welz v. Rhodius, 87 Ind. 1, 44 Am. Rep. 747, where both the English and American authorities are cited.

That such an antecedent oral agreement was made in this case was testified by Berry, Gervais and Barry, and not disputed. The chancellor found in effect that the antecedent parol agreement was a separate agreement, collateral only to the lease, and that proof of such agreement did not contradict or modify any provision of the lease, or affect any right or obligation created by it, and in such view we concur. If Berry was still the landlord and the $4,000 note was held by a third party, under Berry's agreement with the Mulvey Company he would be bound, if that company was compelled to pay the note, to apply the amount so paid on the rent falling due on the lease after August 1, 1910. The fact that McKinney is both the assignee of the lease and the holder of the note cannot affect the rights of the Mulvey Company against him as the assignee of the lease, nor his right as such assignee of the lease and holder of the note as against that company. McKinney is entitled to collect the amount of the $4,000 note from the Mulvey Company, but is bound to apply the amount so collected on the rent falling due after August 1, 1910. * * *

4. COLLATERAL ORAL AGREEMENTS

DURKIN v. COBLEIGH.

(Supreme Judicial Court of Massachusetts, 1892. 156 Mass. 108, 30 N. E. 474, 17 L. R. A. 270, 32 Am. St. Rep. 436.)

Action by Patrick Durkin against Benj. F. Cobleigh for breach of agreement. A verdict was rendered for defendant by direction of the court, and plaintiff excepts.

ALLEN, J. This is an action of contract. The plaintiff had taken. from the defendant a deed of land described as bounded on a street, and referring to a plan on which the street was shown. This street was upon land owned by the defendant. The deed contained no covenant that the defendant would build the street, or cause water to be introduced therein. The plaintiff's case rests upon the proposition that, in order to induce him to buy the lot, the defendant orally promised to grade and build the street so as to connect with a certain public street already built and open, and also to cause the city water to be put into the street by a certain specified time. The question is whether such an oral agreement may be shown.

The plaintiff gained a right of way by estoppel over the land owned by the defendant, and described as a street. Howe v. Alger, 4 Allen, 206; Insurance Co. v. Cousens, 127 Mass. 258; Crowell v. Beverly, 134 Mass. 98. And this right would extend for the entire length of the street, as indicated, provided the defendant owned the same. Tobey v. Taunton, 119 Mass. 404; Fox v. Sugar Refinery, 109 Mass. 292. But the defendant would not be bound by his deed to build and maintain the street fit to travel. Hennessey v. Railroad Co., 101 Mass. 540, 100 Am. Dec. 127. The obligation of the defendant to do the acts now in question depends wholly on his alleged oral agreement. A rule has been established which may be stated in general terms to be that an agreement by parol, which is collateral to the written contract and on a distinct subject, may be proved. It is rather difficult to lay down a precise formula to define in advance for all cases what will come within this rule.

In Steph. Dig. Ev. (Am. Ed.) 163, this is attempted as follows: "The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, if from the circumstances of the case the court infers that the parties did not intend the document to be a complete and final statement of the whole transaction between them," may be proved. Where the oral agreement is on the face of it inconsistent with what was written, it is plain that the writing must prevail. Flynn v. Bourneuf, 143 Mass. 277, 9 N. E. 650, 58 Am. Rep. 135, and Knowlton v. Keenan, 146 Mass. 86, 15 N. E. 127, 4 Am. St. Rep. 282, were cases of this kind.

But the more difficult question arises where the oral agreement relied on relates to something not specified in terms in the writing. It must then be determined whether the written document is to be deemed to contain all that was agreed between the parties. There are many cases in which this question has been presented, and the decisions are not entirely harmonious. Thus in Naumberg v. Young, 44 N. J. Law, 331, 43 Am. Rep. 380, the court disapproved of the decisions in Morgan v. Griffith, L. R. 6 Exch. 70, and Erskine v. Adeane, 8 Ch. App. 756, in which cases it was held that an oral agreement by a lessor to destroy the rabbits might be proved. In an early Massachusetts case it was held that a lessor is not bound by an oral agreement to provide other and better accommodations than those stipulated for in the lease. Brigham v. Rogers, 17 Mass. 571. And on a written contract of sale of goods an additional warranty cannot be proved by parol. Whitmore v. Iron Co., 2 Allen, 52, 58; Eighmie v. Taylor, 98 N. Y. 288. So where one, by a written instrument, agreed to sell out his business stand and stock of goods, it cannot be shown by parol that he also agreed not to engage in a similar business in the same town. Doyle v. Dixon, 12 Allen, 576; Wilson v. Sherburne, 6 Cush. 68.

On the other hand, in several cases more nearly resembling the present in their facts, it has been held that an additional oral agreement might be proved. Thus oral agreements by vendors of land requiring to be filled, that they would pay for the filling, have been held to be independent collateral agreements which might be enforced. Page v. Monks, 5 Gray, 492; McCormick v. Cheevers, 124 Mass. 262. Also an oral agreement by a grantor to pay for building a sewer in the street. Carr v. Dooley, 119 Mass. 294. The case of Graffam v. Pierce, 143 Mass. 386, 9 N. E. 819, was deemed to come within the same doctrine. It was determined in Ayer v. Manufacturing Co., 147 Mass. 46, 16 N. E. 754, that a manufacturer of goods who accepted a written order, with stipulations as to quality, price, and rebate or claims for allowance, might be held on an oral agreement to advertise the goods. See, also, Willis v. Hulbert, 117 Mass. 151; Rennell v. Kimbal, 5 Allen, 356; Tayl. Ev. §§ 1135, 1147.

It seems to us that the case falls within the last class of decisions, and that the alleged agreement of the defendant should be treated as an independent collateral agreement, which need not be included in the deed. The result is that the plaintiff was entitled to have his case submitted to the jury. Exceptions sustained.

« ÀÌÀü°è¼Ó »