Caulk v. Everly

The opinion of the court was delivered by Gibson, C. J. That a contract cannot rest partly in writing and partly in parol, was asserted in Share v. Anderson; and doubtless there are authorities to show that all stipulations on the same subject, and at the same time, constitute but one agreement. But letting and repairing are so far different that they may be subjects of distinct contracts; and as the execution of the lease was complete, in this instance, by the sealing and delivery—the attestation of it by witnesses being unessential—the agreement to repair was made at a time subsequent to it. The witnesses say that the lease had been taken away; that the lessor had returned to have it attested; that the lessee then mentioned the filling up of the wharf as a thing omitted; and that the lessor agreed that it should be done by the lessee at the lessor’s expense. It was evidently an afterthought; but even had the written contract not been closed, the parol promise might, nevertheless, be set up to frustrate the lessor’s meditated fraud—a principle intimated in Share v. Anderson, and asserted in cases both previous and subsequent to it; for since the time of Hurst v. Kirkbride, cited 1 Yeates, 159, and more distinctly stated by Chief Justice Tilghman, in 1 Binney, 616, this court has held it fraudulent to attempt an advantage from a written agreement executed on the faith of parol stipulations not intended to' be performed. Thus in M‘Meen v. Owen, (2 Dall. 173; S. C. 1 Yeates, 185,) parol evidence was received to show that, at the time of executing [306] articles of sale, the price was agreed to be received in any money current at-the day of payment. In Field v. Biddle, (2 Dall. 171; S. C. 1 Yeates, 132,) an obligee was allowed to show a parol agreement at the execution of the bond, that it should take effect only on the happening of-a contingency. So in Miller v. Henderson, (10 Serg. & Rawle, 290,) declarations at the execution of a bond that the defendant’s signature, as a surety, was wanted as a matter of form, and that he should not be called on 'for payment, were admitted as evidence that he was entrapped"; and the same principle was ruled in Campbell v. M‘Clenachan, (6 Serg. & Rawle, 471.) The proper limitation to this, as stated in Hain v. Halback, (14 Serg. & Rawle, 194,) is that the party should appear to have been drawn in to execute the instrument by a belief that .he would have the benefit of the part omitted; without which the rule laid down in Bollinger v. Eckert, (16 Serg. & Rawle, 424,) that whatever was agreed to but omitted, may be shown, would be too broad. The existence of such a limitation, however, is to be implied from the context of that case; and perhaps it was substantially expressed. There are other decisions on the subject, but I shall refer to no more than Christ v. Diffenbach, (1 Serg. & Rawle, 464,) in which a lessee was allowed to give parol evidence of a promise to perform a covenant which had been left out of the lease by mistake. Is not that the very case before us ? We are not told, indeed, that the agreement about filling was made before sealing and delivery; but one of the subscribing witnesses testifies that, at the time of the attestation, the lessee said, “ that one thing had been omitted in the lease concerning the repairs of the wharf;” and that the lessor “ told him to go and repair the wharf, and that what necessary work was wanting, he should be paid for.” If this be taken to have been antecedent to the completion of the instrument, it will result that the lessor was guilty of a fraudulent misrepresentation; and if subsequent to it, the promise would be a separate and distinct contract. The other point is equally clear. Upon the defendant’s promise, if it be a distinct agreement, the plaintiff can certainly maintain an action at law; and even if it be an omitted condition of the lease, it might be separately enforced in equity, for which an action at law is, with us, a substitute. The lessee might undoubtedly defalcate his demand from the rent; but to enjoin the lessor, would be an inadequate remedy in a case where rent had not accrued; as for instance, where the lessor had evicted the lessee before the end of the quarter-. Yet every consideration of justice requires that, having received all for which he stipulated, his own part of the contract should be enforced.' Judgment affirmed.