McGlynn v. Brock

Wells, J. The first point in this case turns mainly upon the construction to be given to the bill of exceptions. It is clear that the defendant could not modify his rights or liabilities as lessee by proof of a contemporaneous paroi agreement. But it is contended that he might prove such a verbal understanding at the time of making the lease, in order to throw light upon and give force to the evidence upon which he relied to show that there had been a surrender of the lease and an acceptance thereof or an acquiescence therein by the lessor. And we think he might do so. But as we construe the exceptions, the evidence was excluded only so far as it was offered for the former purpose, and not as to any bearing it might have for the latter purpose, above stated. As to the second point, in regard to the admission of receipts signed by Samuel F. Pearson, we must take it to be true, according to the statement of the bill of exceptions, that there was “ other evidence in the case, that Samuel F. Pearson was authorized to give said receipts for the defendant.” ’ The question whether it was sufficient to warrant the court in submitting the receipts to the jury, is not before us. The decision of the judge, presiding at the trial, if not conclusive upon such a question, cannot be revised without a statement of all the evidence bearing upon the point. Whether Pearson was so authorized, was a question upon which, in any event, the jury must pass, before giving any effect to the receipts as evidence. The instructions in this regard were right. The defendant was liable upon his express covenant. Nonpayment of rent, of itself, constituted a breach. Occupancy by others, and receipt of rent from them by the lessor, at other times previously, did not release the defendant nor modify his contract. No demand of rent was necessary to be made upon the occupants. Exceptions overruled.