Vandegrift v. Abbott.

BRICKELL, C. J. 1. An administrator has by statute the power, and the power comprehends the duty of renting the lands of the intestate.- — Code of 1876, § 2446. The power and duty will authorize him to make such repairs as are necessary to render the lands tenantable; otherwise it will be incapable of just and prudent exercise. But if the argument of the counsel for the appellant were conceded, and, without authority, upon renting the lands, an administrator should stipulate with the tenant for the making of repairs, he could not avoid the stipulation ; it would be binding upon him, would inhere to the contract of renting, and whoever claimed its enforcement would take it ciom onere. As a general rule, a trustee can not avoid his contracts, or nullify his acts, because they may be in violation of the trust, or an excess or abuse of the authority with which he is invested.—Stoudemeir v. Williamson, 29 Ala. 558; Farrow v. Bragg. 30 Ala. 261; Riddle v. Hill, 51 Ala. 224. 2. It has been repeatedly decided that, Jin an action against a tenant for the recovery of rent, if he is entitled to damages in consequence of the failure of the landlord to repair according to a covenant in the lease, or an agreement made at the time of the contract of renting, he may recoup the damages by way of reducing or extinguishing the rent. — Waterman on Set-Off, 580; Culver v. Hill, 68 Ala. 66; Westlake v. DeGraw, 25 Wend. 669. It is not, as is argued by the counsel for the appellant, a question of set-off. The two demands spring out of the same transaction, and there is a natural equity that the one should compensate the other, and that only the balance should be recoverable.—Hatchett v. Gibson, 13 Ala. 587; Batterman v. Pierce, 3 Hill (N. Y.), 171. 3. The admission of parol evidence of the agreement of the landlord to repair did not offend the general rule, that parol evidence is inadmissible to vary or contradict a contract in writing. The contract in writing was the promise of the tenant to pay the rent; the agreement of the landlord to repair was a distinct and separable contract, though made contemporaneously. Contracts, if a statute does not intervene, may be expressed partly in writing, and partly in parol. If the writing does not purport to set out the entire contract, if it'purports to set out only the part of the contract which is obligatory on the party making it, there is no just objection to parol evidence of the distinct and separable part of the contract, not reduced to writing, obligatory upon the other party.—2 Whart. Ev. § 1015 ; Garrow v. Carpenter, 1 Port. 359 ; Brown v. Isbell, 11 Ala. 1009; Patton v. Beecher, 62 Ala. 585; Huckabee v. Sheppard, [491] [ante, p. 342]. The case of Evans v. Bell, 20 Ala. 509, asserting a contrary doctrine, is erroneous. 4. It was not the duty of the tenant to cause the repairs to have been made, limiting his recovery to the expenses thereby incurred. He had the right to rely upon the promise of the appellant to make them, and for a breach of the promise the appellant'is liable for such damages as were the natural and proximate result.—Culver v. Hill, 68 Ala. 66. Affirmed.