Peerless Petticoat Co. v. Colpak-Van Costume Co. , 273 Mass. 289 ( 1930 )

Wait, J.

The plaintiff, lessee of certain premises, brought ■ this action to recover upon promises made by the defendant, a sublessee, to pay $1,000 if the plaintiff would remove therefrom within a certain time, and to pay the rent for a portion of a month. The defendant pleaded a general denial and many defences, among them the statute of frauds. The Appellate Division dismissed a report by the trial judge, who found for the plaintiff. The case is before us upon appeal from the order of dismissal. We deal only with the matters which have been argued by the defendant.

Whether a definite and binding agreement was reached between the parties was matter of fact to be determined, in part at least, by inferences drawn from their conduct. Evidence of conduct was therefore admissible; and, for that reason, a letter and a bill sent by the plaintiff to the defendant, and the statements as well as the action of the latter’s officers in dealing with them, were properly admitted in evidence. The self-serving statements of the letter and bill were not properly admissible as proof of the facts stated; but, since no request was made to limit the use of the evidence, no good exception lies to its reception so long as on any ground and for any purpose it could be admitted properly. Eveland v. Lawson, 240 Mass. 99, 103.

The same reasoning applies to the admission of letters sent by the plaintiff to a telephone company and to a lighting company notifying them to cease service to it on the premises in question after July 19.

The defendant contended that a certain writing embodied the agreement, if any was made; and objected to the admission of conversations and negotiations prior to its delivery, and' to evidence of actions of the plaintiff’s officers or agents and of certain persons with whom they dealt, on the ground that the language of the contract could not be varied or contradicted. There was, however, a question of fact, whether the writing in question was intended or understood to be anything other than a memorandum — whether there was an oral or a written agreement. The judge could properly find the contract an oral one. His decision and rulings show that he did so regard it. His admission of the evidence objected to was proper. The paroi evidence rule was not applicable. It is not necessary to recite the evidence in detail. We are satisfied that there was no error in finding a definite and complete oral agreement, performed by the plaintiff in so far as it was bound to perform.

Seven of the defendant’s thirteen requests for rulings were given. Of the six refused, four were denied because inapplicable upon the facts as found. Clearly this was correct. Bradley v. Meltzer, 245 Mass. 41, 43. Bottini v. Addonizio, 261 Mass. 456. The others were denied properly. The evidence did not require a finding for the defendant nor that the plaintiff failed to perform at the time agreed. The contentions argued for the defendant all fail when a binding written agreement fades from the case. The order must be

Order dismissing report affirmed.