13 Utah 162 | Utah | 1896
Lead Opinion
It appears from the evidence in the record that Charles Popper, the grantor of the plaintiff, executed a written lease of two and a half acres of land situated in the suburbs of Salt Lake City, for the term of five years from
Tliis evidence was admitted to explain the sense in wbicb the terms “reasonable use” were employed in the covenant sued on. The use that was to be made of the land was not specified in the lease, tbougb real estate may be occupied for many purposes. For life, and its various pursuits and occupations, its necessities and conveniences, require it to be used in many ways. It may be used for residence, commercial, or manufacturing purposes, including the manufacturing of brick, or for other purposes. And, when a particular use is not mentioned in the lease, the land may be used for any lawful purpose indicated by its situation, condition, and adaptability. The reasonableness of the use must be determined by the understanding of the parties, its suitableness, adaptability, situation, and surroundings. From the fact that rent wa,s reserved, it is reasonable to assume that the parties expected the use of the land would be of some value to the lessee; that be would use it so as to get something in return for rent paid. But the evidence in the record shows that the land in question bad no rental value for other than brick purposes. Therefore such a use was the only reasonable one to wbicb the lessee could put it. The evidence objected to was not admitted to add to, take from, or to change in any respect the language of the writing. There was no intention of admitting any other language of the contract than that contained in the written instrument. The object of the evidence was to place the facts in view of the parties when they made the lease before the court, when construing it. In order to determine whether a man has acted reasonably, we should know the facts and circumstances in view of wbicb be acted. And, to determine the use that the parties deemed reasonable, the court should know the
The following paragraph of the charge of the court to the jury is also assigned as error, viz.: “If the jury
The decision of the points above considered is decisive of this appeal. It is therefore unnecessary to consider the case further. The judgment of the court below is affirmed.
Dissenting Opinion
I cannot concur with my brethren in this case. I am of the opinion that the court erred in admitting the testimony of the witness Maxwell, who testified that he heard a conversation between Brain and Popper in 1886, before the lease was executed, and in allowing the witness, under objection, to state what was said between Brain and Popper before the lease was executed, for the alleged purpose of showing what reasonable use meant, as contained in a covenant in the lease, and in permitting the witness to state that before the lease was executed, and while they were conversing about it, Popper said Brain could extract clay from the premises for the purpose of making brick. Popper owned the property when the lease was made. The lease was before the court, and is complete. The law presumes that the parties included therein all their agreements. A contract which the parties intended to make, but did not make, cannot be set up in the place of one which they did make, but did not intend to make. 2 Pars. Gout. 497. The general rule is that parol evidence cannot be admitted to counteract or vary the terms of a written instrument. When parties enter into a written agreement, all their earlier agreements which are not incorporated in the written contract are considered as intentionally rejected. This is so held because if every writing was held subject to enlargment and alteration according to such testimony, and made dependent on the slippery memory and uncertain testimony of corrupt parties, which might be offered on either side, as to the previous intention or collateral facts, it would be of no use to reduce the contract to writing, or to give written contracts fixedness or certainty in any way. 2 Pars. Cont. 548. This is the general rule. As to terms, conditions, and limitations, the contract must speak for itself. But, as to parties or the