Averill v. Sawyer , 62 Conn. 560 ( 1893 )

The plaintiffs' complaint contains several counts. We need only mention the first. The first paragraph recites a lease which it is averred the defendant on October 1st, 1887, entered into with the plaintiffs, under their hands and seals, of a certain store on Main street in Hartford, in which lease among other things the defendant obligated himself to pay the water charges, whether the same should first be paid by the plaintiffs or not. The second paragraph avers the payment of these charges to the amount of $217 by the plaintiffs; and the third, the failure of the defendant to pay the same to the plaintiffs, in accordance with the agreement set forth in the lease. The defendant, by way of special defense to this count, alleges that he, about March 1st, 1887, in consideration of certain promises and agreements made by the plaintiffs, agreed to execute the lease recited; that among other things, the plaintiffs promised that the building to be erected by them, and in which the store and basement to be leased by the defendant were to be situated, should be a thoroughly first class building, well finished, with the basement extending under the sidewalk to the curb line of the street, and so finished as to be suitable for the defendant's retail business, and that there should be laid, in the vestibule entrance to the store, a flooring, in small tile, with the defendant's name set in stone in the floor; that in consequence of the failure of the plaintiffs to fulfil their said promises and agreements the defendant refused to execute the lease on the day set for such execution, but finally on a later day, October 17th, 1887, in consideration of certain promises made on that day, one of which was that said tiling should be put in the vestibule at some time within one year from said date, the defendant did execute the lease and enter into possession of the premises; that the execution of the lease, and the promise therein to pay the water rents, were wholly in consideration of said agreements on the part of the plaintiffs; and that the plaintiffs did not place the tiling as agreed. The defendant also set up the failure to place the tile and the damage resulting therefrom by way of counter-claim. The plaintiffs by way of replication, first denying the material allegations of the special defense, stated that there was a written agreement to lease the premises described in the lease set out in the complaint, dated the 26th day of February, 1887, and that all the agreements in relation to the construction of the building and the matters set out in the defence were contained in said written agreement, which was then recited, being an agreement on the part of the plaintiffs to grant, and of the defendant to take, a lease of a store to be erected by the plaintiffs, with certain appurtenances, including a gangway, and describing the store as follows: — "Said store, when completed, shall have a front on Main street of about forty feet, and shall extend eastward to said gangway, and shall have a plate glass front, and be built and finished in the manner and style set forth in the plans of J. G. Glover, architect, a copy of which plans has been exhibited by said intended lessors and examined and approved by said intended lessee, subject to certain slight modifications as to details of arrangement of stairways, doors, windows and closets, and to the further modification that the basement of the new store shall be eight feet in height instead of seven feet as detailed in said plans." The agreement, as recited, contained further stipulations as to the date of the completion of the store and the duration and terms of the lease. The defendant rejoined, admitting the execution of the written agreement, but denying that all the agreements in relation to the construction of the building and the lease thereof were contained in said written agreement.

Upon the trial in the Superior Court, the plaintiffs having by uncontradicted evidence proved the due execution of the lease and written agreement, that the defendant entered into the possession of the premises under said lease and agreement, and that he had failed to pay said water charges, and the amount of said charges, the defendant, under his answer and counter-claim, offered to prove a parol agreement entered into between the plaintiffs and the defendant, prior to the agreement of February 26th, as a further consideration for the promises and undertakings of the defendant set forth in said agreement of February 26th and in said lease, and by which, in addition to or alteration of the plan or manner in which said building was to be constructed, as set forth in said agreement of February 26th, the plaintiffs promised that they would put in the vestibule of said store a mosaic tiling, with the defendant's name set therein, and would cause the ceiling to be painted, and certain walls to be calcimined, and that, the plaintiffs having failed to perform said parol agreement, the defendant for several days refused to execute said lease, and that before the execution of the lease by the defendant the plaintiffs renewed their said parol promise, and agreed that the same should be performed by them within one year, and that in consideration thereof the defendant executed the lease in question.

To the proof of this parol agreement the plaintiffs object ed, upon the grounds that no such agreement was set forth in the defendant's pleadings, that all negotiations and agreements as to what was to be performed by the plaintiffs in the leasing of the premises were merged and contained in the written agreement and in the lease, and that said parol agreement was variant from, and in alteration of, the terms of the written lease, and variant from the terms of the written agreement. The court excluded the evidence and the defendant excepted to the ruling. The plaintiffs recovered judgment, and the defendant appealed.

It will be seen that the record presents but a single question — that of the admissibility of the parol evidence offered. And in considering that, we may, at the outset, dismiss the first ground upon which the plaintiffs objected to its admission — that no such agreement was set forth in the defendant's pleadings, for, while this is correct as to a portion of the evidence offered, that in respect to the ceiling and calciming the walls, it is not as to the mosaic tiling with the name, so that we reach the consideration of the other grounds, which are, in effect, that this parol agreement is variant from the written agreement and lease, in which all prior undertakings and agreements should be held to be merged.

The rule which prohibits the introduction of parol evidence to contradict, vary or explain a written agreement, except in case of a latent ambiguity, is undoubted. That all prior negotiations and agreements are merged in the written instrument is admitted. But it is said by the defendant that, notwithstanding this, there are many cases where evidence of agreements made by parol at or before the time when written instruments are executed, are admitted to affect the rights of the parties, although they relate in some measure to the subjects of the written instrument. This also is doubtless true, and the contention is that the case before us falls within the principle underlying this class of cases. The principle applies when the written instrument was executed in pursuance, but only in partial execution, of a preceding verbal agreement.

This is well stated in Clarke v. Tappan,32 Conn., 66, cited by the defendant. It is there said that the foundation of the rule prohibiting the introduction of parol evidence is, that the parties have designedly put the agreement into a more reliable form, and that, to give the writing this conclusive effect, the agreement itself must be reduced to writing, and that the rule does not apply when the writing is merely given in performance of the contract. The same idea is also expressed in Collins v. Tillou,26 Conn., 368, and in the very recent case of Hall v. Solomon, 61 Conn., 482. These were cases of deeds of land, and the decisions proceeded upon the ground that such deeds, upon the particular facts found, were in each case but a part execution of a prior contract, and not the contract itself. The same principle has been applied to leases, and many cases have been cited by the defendant. Thus in Graffam v. Pierce, 143 Mass., 386, a verbal agreement was made to give a lease of a hall, and as part of the consideration the lessor promised to put a hard pine floor in the hall. The lease was executed. The lessor refused to put in the floor, and the lessee sued him. The court held the parol evidence admissible, saying that the writing was but a part performance of an oral contract, and contained nothing inconsistent with the alleged promise. Among other cases cited, all resting upon the same principle, are Morgan v. Griffith, L. R., 6 Exch., 70; Welz v. Rhodius, 87 Ind., 1;Chapin v. Dobson, 78 N. York, 74; andErskine v. Adeane, L. R., 8 Ch. App., 756. And although in cases of leases the proper application of the principle is not as clear and easy as in that of deeds, and no case has yet arisen in this state calling for such application to a lease, and such application should certainly be made with caution, yet, if there had been nothing in the case before us but a lease, it would have been such a case, and we might, under the circumstances, have reached the same conclusion as the other courts whose decisions are cited. But in the case before us the pleadings stated, and the undisputed evidence proved, the further fact, that back of the lease there was an agreement to lease, and that this agreement was not by parol, but in writing and under seal, a writing which appeared to be complete in itself, without any suggestion that it was dependent upon or collateral to any other contract or agreement; one in which, to use the language of this court in GlendaleMfg. Co. v. Protection Insurance Co.,21 Conn., 37, the parties apparently "deliberately put their engagement into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement." "In such cases," say the court in that case, "it is conclusively presumed that the whole engagement of the parties and the extent and manner of their undertakings was reduced to writing. After this to permit oral testimony would be dangerous and unjust in the extreme."

The defendant's counsel however contend that this separate written agreement should not be considered to affect the case, since the plaintiffs' suit was not brought on that agreement. It is true that it was not and could not have been. It was brought upon the lease executed in pursuance, and in partial execution, of the agreement; in full execution, as appears from its terms, on the part of the defendant. By signing a lease containing the terms and stipulations which the agreement of lease contracted that it should contain, the defendant had done all that he agreed in the contract to do, and no action could thereafter be maintained against him by the plaintiffs, based upon the agreement of the lease, and no cause of action thereon in their behalf remained. When, however, to their action upon the lease the defendant set up in defense, and as a counter-claim, a prior unexecuted contract on their part, in pursuance of which the lease was executed, it was proper for them to reply that the same was executed in pursuance of a written contract, and to recite it. And this being admitted in the pleadings, as well as proved in evidence without objection, such contract becomes relevant and material. Indeed the portion of the finding which we have quoted in this opinion states that the defendant offered the parol evidence in question partly as a consideration for this written agreement. Concerning which offer the language of the Massachusetts court, in Howe v. Walker, 4 Gray, 319, is relevant — "Nor can you, under the guise of proving by parol the consideration of a written contract, add to or take from the other provisions of the written instrument." It is true, the record states that he also offered it as a part consideration for the lease, and offered to prove that the alleged promises of the plaintiffs, having been made before the agreement of February 26th, 1887, and furnishing a consideration therefor, such promises were afterward renewed before the execution of the lease, coupled with the agreement that the same should be performed within one year. It can hardly be claimed however, nor do we understand that it is claimed, that this last feature is of any legal significance. For if the alleged parol promises cannot be proved as a consideration for the written agreement of lease, and if such written agreement stands as the contract in pursuance of which the lease was executed, in pursuance of which the defendant was obligated to do the act which he did when he executed it, then the renewal of a promise, incapable of proof in the first instance as an additional consideration to the defendant for doing that which for an adequate consideration he was already obligated to do, could hardly be claimed to constitute a valid cause of action or of defense. And the admission of parol evidence of such a promise, under such circumstances, would be more fruitful of evil than productive of good.

That a promise to do what one is already bound to do is not a consideration, is a principle established by an overwhelming weight of authorities. Dodge v. Stiles,26 Conn., 463; Bartlett v. Wyman, 14 Johns., 260; Crosby v. Wood, 6 N. York, 369; Vanderbilt v. Schreyer, 91 id., 392, 401, Conover v. Stillwell, 34 N. Jer. Law, 54; Warren v. Hodge, 121 Mass., 106;McCaleb v. Price, 12 Ala., 753;Cobb v. Cowdery, 40 Verm., 25, 28;Runnamaker v. Cordray, 54 Ill., 303;Phœnix Ins. Co. v. Rink, 110 id., 538;Ford v. Garner, 15 Ind., 298;Reynolds v. Nugent, 25 id., 328;Billing v. Filley, 21 Neb., 511;Deacon v. Gridley, 15 Com. Bench, 295;Mallalieu v. Hodgson, 16 Queen's Bench, 689.

There is no error in the ruling complained of and a new trial is denied.