Stoddard v. Emery

Opinion, Mb. Justice Gbeen: There was no evidence to sustain the allegation of an omitted parol agreement left out of the written lease by fraud or mistake, and if there had been it is at least very doubtful whether any recovery could be had upon such an agreement or stipulation in an action of covenant. It is perfectly well settled that when a parol agreement changing or adding to a previously executed sealed contract is subsequently made, the whole becomes parol, and the remedy is assumpsit, and not covenant. Vicary v. Moore, 2 W. 451, and a number of cases which have followed it, are examples of this kind. The proposition that there was an implied covenant to bore wells every four months, or as often as it was customary to [442] to put down additional wells, in the absence of any express contract is altogether untenable. The parties provided by the express terms of their contract how many wells should be put down, and that provision of the contract determines the question. When the number is expressed, there is no room for any implication that there should be some other number. Had there been nothing said in the contract on the subject, there would of course have arisen an implication that the property should be developed reasonably, and evidence of a custom of reasonable development by boring a given number of wells in a certain space of time, would have been competent and perhaps controlling. But that doctrine has no application in a case where the parties have expressly agreed in the contract how many wells shall be bored. We agree with the learned court below that there was no breach of the lease prior to the sale of the reversion by Stoddard in January, 1878, and that being so there was no right of action by Stoddard. If there were any breaches after the purchase of Janes, there would be no right of action in Stoddard, and there could be no recovery in an action brought in his name. The second proposition discussed by counsel for plaintiff in error is of no relevancy, because the only kind of breaches for which recovery is there claimed is breaches of implied covenants occurring before the sale. But we have already held there were no such implied covenants, and hence there could be no recovery for an alleged breach of them. Judgment affirmed.