Armstrong v. Cavanagh

Stevens, J. The objection urged to the admissibility of the testimony offered on behalf of the defendant was that same sought to vary, contradict, and add to the terms of the written contract. It is, of course, elementary that evidence to do this is inadmissible; but it is the contention of counsel for defendant that, while the oral contract was discussed and agreed upon at thé time the written contract was signed, it is, nevertheless, separate and distinct therefrom, and is in no sense covered thereby. [143] By reference to the written lease, it will be found that the leased premises are described as: “Apartment No. Five, Third east of the Wright Building, situated at 3612 Ingersoli Avenue, Des Moines, Iowa.” From the evidence it appears that this apartment is on the third floor of the building. The lease does not purport to cover the lots on which the building is situated, and includes only the apartment in question, with, of course, the implied right of ingress and egi*ess. The evidence further disclosed that the garage was located on the same lots as the apartment house, and in the rear thereof. The lease does not, in terms, include garage privileges, nor is there anything therein from which an implied right to use the same appears, unless from the clause quoted above. There is no agreement on the part of plaintiff to lease garage privileges to defendant, nor does he agree to use the same or pay rent therefor. The lease does no more ' than fix the price for the privilege of using space for defendant’s automobile. No obligation rested upon the defendant to use the same or pay rent therefor, unless he kept his car therein. If a contract existed between the parties, requiring plaintiff to furnish, and defendant to pay for, the use of the garage, it must have been independent of the written contract. The rental to be paid for the apartment was definitely fixed, and, in case defendant placed his car in the garage, he was to pay extra therefor, at the rate of $5.00 per month without heat, and $7.50 with heat. Clearly, plaintiff as-’ sumed no obligation to furnish heat, nor did she undertake to keep the garage warm, so as to prevent the defendant’s automobile from freezing. Unless‘the evidence offered by defendant tended to vary, contradict, or add something to the written lease, it could not be excluded upon the ground that it tended to have this effect. The instrument contained no provision as to when the defendant would place his car in the garage, nor the extent to which same would be heated, [144] nor when the rental should be paid. The offer made by defendant was to show that, prior to the time he signed the written lease, plaintiff notified him that she would send the same by her husband, who was authorized to transact the business for' her and to make arrangements for the renting and leasing of the apartment and garage; that, at the time of signing said instrument, the matter was fully discussed by Mr. Armstrong and the defendant,’ and it was agreed that plaintiff would furnish the heat for said garage necessary to protect defendant’s automobile from freezing; that a rental of $5.00 per month was to be paid in advance, and the additional $2.50 per month, for the time when heat was required, at the end of the winter season, when the full amount due was known; that, subsequently, defendant talked with plaintiff over the telephone, repeating to her, in substance, the conversation had with her husband, and she then informed him that the arrangement wms satisfactory, and that the heat would be furnished whenever it was necessary for the protection of the car, and agreed to the time and manner of payment of the rental for said garage; that, between the 11th of September and the 1st of October thereafter, defendant again talked with plaintiff about the matter of heating the garage, at which time he informed her that he might desire to move into the apartment shortly before the 1st of October, and requested her to be sure and furnish sufficient heat for the protection of the car; that he was keeping the same in the city, in Leachman & Claiborne’s heated garage; and that he wanted to be sure that the garage would be heated. Was this evidence improperly excluded by the court? Manifestly, upon defendant’s theory, the written contract did not contain the full agreement of the parties. It was complete in so far as it related to the apartment, but did not purport to include the garage. The oral contract alleged by defendant did not tend to alter, vary, or contradict a word [145] or sentence of the written instrument, but related wholly to a matter concerning which the written instrument was silent, except for the clause quoted above. Parol evidence of a contemporaneous, collateral agreement not purporting to be included in the written agreement is not inadmissible upon the theory that it tends to vary, alter, or contradict the terms of the written instrument, for the reason that it does not do so. The written.lease referred to an apartment, the alleged oral agreement to a garage, and the two were wholly separate and distinct in their terms and character. The evidence offered by the defendant of the alleged oral contract should have been received, and it ivas error for the court to exclude same. Hall v. Barnard, 138 Iowa 523; Ingram v. Dailey, 123 Iowa 188; Peterson v. Chicago, R. I. & P. R. Co., 80 Iowa 92; Murdy v. Skyles, 101 Iowa 549; Sutton v. Griebel, 118 Iowa 78; Anderson v. Thero, 139 Iowa 632; Horner v. Maxwell, 171 Iowa 660; Witthauer v. Wheeler, 172 Iowa 225; Chicago Tel. & Sup. Co. v. Marne & Elkhorn Tel. Co., 134 Iowa 253. It therefore follows that the court committed error in excluding the testimony of the defendant, and the judgment of the lower court must be reversed. Other questions discussed by counsel do not properly ■ arise upon this appeal, and we need not consider them.— Reversed. Preston, O. J., Laud and Gaynor, JJ., concur.