Keegan v. Kinnaire , 12 Ill. App. 484 ( 1883 )

MoAllisteb, J.

We are of opinion that the court below erred in admitting the witnesses for the plaintiff to testify to conversations which were had between the parties before and at the time of the execution of the written lease given in evidence, and tending to show a particular collateral purpose for the making of such lease; and that John Keegan, one of the lessees, had no actual interest in the demised premises, and was but a formal party.

The rule is recognized by all courts, that where parties have deliberately put their engagement in writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such obligation, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, was reduced to writing, and oral testimony of a previous eoliog_uivm between the parties, or of conversations or declarations, at the time when it was completed, or afterward, is rejected: 1 Greenlf. on Ev. § 275; Abrams v. Pomeroy, 13 Ill. 133; Harlow v. Boswell, 15 Ill. 56; Winnesheik Ins. Co. v. Hobzgrafe, 53 Ill. 522; Conwell v. R. R. Co. 81 Ill. 232; 2 Wharton on Evidence, § 1014.

We think also that the court erred in allowing plaintiff to give evidence of the alleged parol agreement, made contemporaneously with the execution of the written lease, to the effect that the defendants or Rose Keegan might remain in the occupation of the demised premises on and after the day of the expiration of the lease, but as tenant from month to month, subject to a notice of thirty days, to quit. The lease made under seal and inter partes, contained an express covenant that the lessees, the defendants, would surrender up the demised premises to the lessor at the expiration of said lease, which would be May 1, 1880.

It can not be questioned that such contemporaneous parol agreement was in direct conflict with that covenant. Suppose that upon the expiration of the written lease the defendants had relied upon that parol agreement, so made, and held over in virtue of it; but that the lessor or his grantee, who was in privity with him, had brought an action of forcible detainer for the possession, or had brought an action upon such covenant, to surrender up the premises at the end of their term, to recover damages for a breach of it, woxdd it have been competent for the defendants to set up and prove such contemporaneous parol agi’eement, as a defense in either of such actions? Most clearly it would not, because that would not only be to allow a party to an instrument under seal, to give parol evidence to vary, contradict, or nullify one of its express pxx>visions, but it would be to allow the admission in evidence and give vitality to a parol agreement in reference to the same subject-mattei*, made at the same time with the written one, and which, by the settled rules of law, must be regarded as' mex’ged in the writing. See axxthorities sujjra, and Brady v. Peiper, 1 Hilt. 61; Jungerman v. Bovel, 19 Cal. 354; Melton v. Watkins, 24 Ala. 433; Roberts v. Barker, 1 Cromp & Mees. 808; Mease v. Mease, Cowp. 47; Haare v. Graham, 3 Camp. 57; Graves v. Ashlin, Id. 426; Doe, etc. v. Lea, 11 East, 312.

If such contemporaneous parol agreement was merged in the written lease, or in other words, was not provable by the lessees, then, by parity of reason, it was not by the lessor, or by the plaintiff, who was. a privy. Such parol agreement, made under the circumstances as above stated, was wanting in legal vitality, as respected both the plaintiff and defendants.

We are also of opinion that the court erred in allowing the plaintiff, against the objection of John Keegan, to give in evidence against the latter the admissions and declarations of Rose Keegan, made in his absence, and tending to prove the new agreement. The only relation shown by the evidence to have existed between John and Rose Keegan was that of husband and wife; joint lessees under the written lease, and joint defendants in this action of tort. It is the general common law rule that, notwithstanding a community of interest between husband and wife, the declarations of the latter, in the absence of the former, will nof bind him: Allan and Wife v. Pritchett, 6 Term. R. 680; 2 Starkie on Ev. *32; 1 Greenlf. on Ev. § 185. In Newton v. Harland, reported in a note by Starkie at the above page, an action was brought by the husband and wife against the defendant for assaulting the wife; the defendant justified the turning the wife out to obtain possession of the plaintiff’s house. It was held by Parke, B., that the declarations of the wife as to the terms of the agreement under which the husband held the house as tenant, were inadmissible.

Mor were the declarations or admissions of the wife competent as against the husband, on the ground of their being co- ■ tenants of the demised premises. Although they were jointly liable to pay the rent, etc., yet their interest in the estate, created by the demise, was that of tenants in common. 1 Washburn on Real Property, 4th ed. 644.

Where several tenants in common in either real or personal property, are joined as plaintiffs or defendants in a suit, the admissions or declarations of one of such tenants in common, are not competent evidence against the others. Dan v. Brown, 4 Cowen, 483; McClellan v. Cox, 36 Maine, 95; Jaggers v. Binnings, 1 Starkie R. 64; Greenlf. on Ev. § 176.

Various other errors were assigned and urged in argument on the part of appellants, but which we do not deem it necessary to discuss, those pointed out being sufficient to require a reversal of the judgment. The judgment below will be reversed and the cause remanded.

Judgment reversed.