Browning v. Haskell , 39 Mass. 310 ( 1840 )

Wilde J.

delivered the opinion of the Court. On the testimony of the subscribing witness, it was argued by the counsel for the plaintiffs, that the lease was executed on a condition, and that as the condition had not been performed, the lease became invalid. But it is the opinion of the Court, that the evidence does not prove a conditional execution or delivery of the lease. If it had been delivered to a third person, as an escrow, on condition not to take effect until something should be done by the lessee, then the lease could have no operation until the performance of the condition. But a deed takes effect according to the terms of it, on its delivery to the party ; and if the deed is absolute and unconditional on the face of it, parol evidence cannot be admitted, to prove that the parties agreed that it should be conditional; for this would be to allow parol evidence to contradict the terms of the deed. In the present case, the parol evidence did not prove any condition, but only that the lessor was induced to sign the lease, on a promise of the lessee which afterwards he refused to perform. He undoubtedly would be responsible, according to the evidence, in an action for the breach of that promise; but it does not avoid the lease, unless it can be shown that the promise waa made fraudulently. For on the delivery of the lease by the lessor to the lessee, the lease would have become absolute, although it were delivered expressly on the condition that it should not take effect until after the performance of some condition by the lessee. Fairbanks v. Metcalf, 8 Mass. R. 238.

The plaintiffs therefore cannot maintain their action, unless on the ground of the fraud of the defendant in procuring the lease. The case was not left to the jury on that ground ; and a new trial therefore is allowed.

Mew trial granted.