Heysham v. Dettre

Mr. Justice Gordon delivered the opinion of the court, May 7th 1879. There is no doubt but that the court below erred in excluding the defendant’s offer to show, by parol evidence, that the 'plaintiff had agreed that the gas-fixtures and heater should go with the house. They were personal property, and so were the subjects of ■ oral grant or reservation. The written agreement embraced realty exclusively, and there is nothing in it which precludes a collateral agreement concerning personal property. Growing crops pass by deed as appurtenant 'to land, and yet, as they are by custom personalty, a parol reservation of them is good: Backenstoss v. Stahler’s Adm’rs, 9 Casey 251; Harbold v. Kuster, 8 Wright 392. If, then, growing crops may be thus dealt with, we see no reason for dealing otherwise with a portable heater and gas-fixtures. This error, however, is harmless. Whether there was such an [509] agreement or not, was a matter about which the parties disputed; the one affirming, the other denying. Such being the case, the plaintiff had a right to retain the property until the question was legally settled. The defendant, however, professed to acquiesce in the plaintiff’s view of the matter, and after some bargaining and cheapening, executed and delivered the note in controversy, and so got possession of the disputed articles. ' There was in this, on part of the plaintiff, neither duress nor fraud. He had a right to insist on his understanding of the arrangement, and to make it the subject'of compromise; and we agree with the learned judge who tried this case, that the defendant’s small trick, in purposely making his note non-negotiable, in order that he might get possession of the disputed property, and at the same time leave the way open to impeach his own contract, was neither honorable nor honest. Judgment affirmed.