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,
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,
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,
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±