Flanders v. Fay

The opinion of the court was delivered by Prout, J. The ver-diet of the jury in this case has established the fact, that after the execution of the written lease, made a part of the case, and on the 1st day of April when by its terms it’ was to take effect, the parties to it mutually agreed that the appraisal of the stock, with which the defendant was to stock the farm demised, should be made without reference to its market value, but merely with reference to its condition for the purpose of determining whether at the end of the term for which the farm was leased, it was in as good, or better, or worse condition than it was on the 1st day of April, and that the rights of the parties in that respect was to become fixed, and were to be adjusted as to value and increase of the stock, on the basis of such condition, and not of the market. The lease providing that the increase of the stock should be equally divided between the parties at the expiration of the term, the contemplated appraisal as therein stipulated, affords the basis of ascertaining the value or increase of the stock to be thus divided. Was the evidence showing the subsequent agreement admissible? The case does not show that it was not in writing, but were it not, we think it was properly received. The rule that verbal agreements entered into between the parties to a simple contract in writing, before or at the time of the execution of such contract, is not admissible to vary or affect its construction, does not apply when it appears that the oral agreement was made subsequent to the execution of the written agreement, and upon a new consideration. “ Such subsequent oral agreement may enlarge the time of performance — may vary any other terms of the contract, or may waive and discharge it altogether,” The distinction is plainly taken and stated in Goss v. Lord Nugent, 27 E. C. L. 33, where Lord Denman expresses the rule in these [318] terms : “ By the general rules of the common law, if there be a contract which has been reduced into writing, verbal evidence is not allowed to be given of what passed between the parties, either before the written instrument was made, or during the time it was in a state of preparation, as to add to or subtract from, or in any manner to vary or qualify the written contract; but after the agreement has been reduced into writing, it is competent to the parties, at any time before breach of it, by a new contract not in writing, either altogether to waive, dissolve, or annul the former agreement, or in any manner to add to, or subtract from, or vary or qualify the terms of it, and thus to make a new contract; which is to be proved, partly by the written agreement, and partly by the subsequent verbal terms engrafted upon what will be thus left of the written agreement.” This principle seems to be recognized in Sherwin et al. v. Rut. & Bur. R. R. Co., 24 Vt. 347, which presented the question, whether the plaintiff in that case, having contracted under seal to perform certain labor by a specified time, which was subsequently enlarged by parol, could sue and maintain an action for a breach of covenant. The court held he could not, but say, “ this rule does not apply to written contracts not under seal. There both contracts, being of the same grade, the whole being set forth, and performance alleged, within the enlarged time, assumpsit lies,” and it would seem to follow, that it is equally valid as a ground of defence. Bailey v. Sharon, 9 Cowen, 114; Erwin v. Saunders et al., 1 Cowen, 249; Keating v. Price, 1 Johnson’s Cases, 22. As this view disposes of the only question made by the plaintiff upon the exceptions, the judgment of the county court is affirmed.