Barelli v. O'Conner

GOLDTHWAITE, J. The objection to the evidence offered by the defendant, was of a twofold nature: 1st, It was alleged to be incompetent; 2d, It was said to be irrelevant to the issue. The rule of the ancient common law, in Blake’s case, [6 Coke 43,] is said to have been, that a contract under seal could not be discharged by one by parol; but at the present day, the proposition •is by no means true -as a general rule. It has frequently been [619] held, that a contract under seal will be considered as abandoned and discharged by a subsequent executed parol contract. [Monroe v. Perkins, 9 Pick. 298; Le Fevre v. Le Fevre, 4 S. & R. 241; Crisgum v. Nicholson, 1 H. & M. 435, and other cases, cited; 3 Cowan & Hill’s notes, 1479.] In our own court, the same doctrine has been, at least impliedly, recognized by the case of McVoy v. Wheeler, [6 Port. 201,] where we considered a declaration in covenant as bad which alleged a subsequent executed parol contract for its modification; and, also, that the plaintiff might have his remedy on the new contract. To the same effect is Langworthy v. Smith, [2 Wend. 587.] Perhaps it will appear, whenever it shall be necessary to consider this question as the turning point of a decision, that the true matter of distinction is not whether one contract or the other is under seal, but whether the last one is sustained by a valid consideration. In the present case, therefore, if the defendant’s pleas had presented the proper issues, we should not hesitate to hold that the covenants, binding them in the lease, might be discharged by a subsequent valid parol agreement, although it was made before any actual breach of the covenants. But the plea in this case is, accord and satisfaction of the breaches of covenant declared for, and we cannot well see how evidence of a discharge of the covenants, or the substitution of a new contract between these parties can be given in evidence under the plea. To permit such a practice, would be a departure from well settled rules of pleading and evidence. The same remarks may properly be applied to the refusal of the court to give the charge requested. It is very possible that the security of the lessor, for his payment of the rent, or for any other, breach of the lessee’s covenants, would be a virtual abandonment of his action of covenant for rent; but the refusal of the charge is amply sustained by the fact, that there was no issue between the parties under which such evidence was proper or admissible. Judgment affirmed.