164 Ill. 298 | Ill. | 1896
delivered the opinion of the. court:
The only question presented for the consideration of this court is, whether the evidence offered by defendant should have been submitted to the jury,—whether the defense relied on, if established, would have authorized the jury to return a verdict in his favor. In other words, the question is whether the surrender of a written lease under seal can be shown by parol testimony. If it can, then the question as to whether there was a surrender of the lease was one of fact, which should have been submitted to the jury. '
There can no longer be any contention in this State over the general rule insisted upon by appellee, that a sealed executory contract cannot be altered, changed or modified by parol agreement. This rule of the common law has been adopted by this court and consistently followed in a long line of unbroken authorities. (Chapman v. McGrew, 20 Ill. 101; Hume Bros. v. Taylor, 63 id. 43; Barnett v. Barnes, 73 id. 216; Loach v. Farnum, 90 id. 368; Golds-borough v. Gable, 140 id. 269.) One good reason for such a rule is, that a party will not be permitted to enforce a contract, or the opposite party to defeat its enforcement, by relying on a contract part of which is in writing under seal and part a parol agreement. The defense offered to be set up on this case, however, was not to change, alter or modify the terms of a lease under seal, but to establish by parol testimony that such contract or lease had been canceled and surrendered by agreement of the parties thereto, and that such contract was no longer in existence for any purpose.
In all the cases above cited, and in other similar authorities of this court, it will be found that it has been held an executory contract under seal cannot continue to remain in force with one element or provision altered or changed by an oral agreement. Where such a contract is to be considered and its enforcement sought, the court will not go beyond the instrument to inquire whether any of its terms have been changed by oral agreement. A distinction, however, must be drawn between contracts of this character, which are relied on as being in force with some provision alleged to have been changed by an oral agreement, and those which it is insisted, in defense, have been absolutely abrogated and surrendered by parol agreement of the parties thereto. A defendant might, by parol proof, show, in an action against him on a contract or lease under seal, that he had made full payment of all amounts due, and thus was discharged. He might also, by parol testimony, show an eviction where there was no default by him in his lease, and thus a discharge. We know of no good reason why he may not also show, by parol proof, that by agreement between the landlord and himself he has been released from the terms and obligations of the lease, and has, in pursuance thereof, surrendered possession of the premises to the landlord. In Baker v. Pratt, 15 Ill. 568, it was held by this court that parol proof as to the surrender of a lease under seal was admissible. The same doctrine was adhered to in White v. Walker, 31 Ill. 422. A parol surrender has been held sufficient in Allen v. Jaquish, 21 Wend. 628. It was said by Bigelow, J., in Talbot v. Whipple, 14 Allen, 177, that the rule of law, as now settled by the recently adjudicated cases, is, that any acts which are equivalent to an agreement on the part of the tenant to abandon, and on the part of the landlord to resume, possession of the demised premises, amount to a surrender by operation of law. In Harms v. McCormick, 30 Ill. App. 125, it was said by the court: “Whether there had been an agreement for a surrender or not, the jury were to decide upon parol evidence. There is no statute of frauds in this State re quiring surrender to be in writing. It was for the jury to determine, upon the conflicting testimony, what was the effect, and that is an end of the controversy.”
We hold it to be the law of this State, that where it is not sought to alter or change the terms of a contract under seal, still leaving it in force, but where the object is to show that such instrument has been abrogated, canceled and surrendered, the question is one of fact for a jury, and evidence thereon is admissible. In the present case we do not pass upon or determine whether or not the evidence offered by defendant was sufficient to sustain his defense. That is not our province. We do hold, however, that such evidence tending to show a surrender and acceptance should have been submitted to the jury, and it was a question of fact for the jury to determine if there was an executed agreement for the surrender of the lease. Williams v. Vanderbilt, 145 Ill. 238.
It was error in the trial court to strike out defendant’s evidence and to instruct the jury to find for the plaintiff, and the judgment of the Appellate Court affirming the judgment of the Superior Court is reversed and the cause remanded.
MmrseA and remande±
