183 A.D. 177 | N.Y. App. Div. | 1918
The plaintiff alleges in his complaint that on August 5, 1915, the defendant leased to him a bam for the purpose of storing roofing slate at the monthly rental of eight dollars, and that he took possession of and has since continuously used and occupied the premises and paid the rent therefor, and that about August 22, 1916, the barn was entirely
The evidence on the part of the plaintiff tends to establish the allegations of his complaint. He testified that after the destruction of the barn by fire the defendant agreed to.construct a new building for the use of the plaintiff at a rental to be increased from eight dollars to ten dollars a month. The plaintiff also testified:. “ I told him that the old building was a good building and when it burned down that I had three carloads of slate in there which would weigh about 120 tons, paper, nails and all the trimmings, and I said if he would put me up as good a storehouse as the old one was it would be all right.” He further testified that he was to occupy the building as soon as it was completed and that he was to have a lease thereof for two years. It developed at the trial that on September 25, 1916, a written lease was executed between the parties of the new building^ for a term of two years to commence October 1, 1916; that two days after the execution of the lease the defendant told the plaintiff that the building was ready for use and on September twenty-ninth, after plaintiff had placed therein about twenty-six tons of slate, being part of one carload, the floor collapsed causing damage to the slate, The lease so far as disclosed by the record
It is to be observed that although the injury to the plaintiff’s property occurred after the execution of the written lease it was nevertheless before the commeneenent of the term created thereby. The defendant, however, assumes that the case is to be disposed of in all respects as if the accident had occurred after October first, the commencement of the term of tenancy created by the written lease. It may be that such assumption is correct. That lease contains no covenant or agreement as to the condition or strength of the building. It carried with it no implied warranty or agreement that the property was suitable for the purpose for which it was hired. (Edwards v. New York & Harlem R. R. Co., 98 N. Y. 245; Daly v. Wise, 132 id. 306; Franklin v. Brown, 118 id. 110; Jaffe v. Harteau, 56 id. 398.)
The plaintiff relies on the oral contract made before the construction of the new building, the effect of which as he contends was that such building would have a carrying strength of 120 tons. The defendant thereupon invokes the rule that prior negotiations were merged in the written lease. That rule, together with its exceptions, received elaborate consideration in the case of Thomas v. Scutt (127 N. Y. 133, 137), where it was stated: “ Delivery upon an unperformed condition and the like may be shown by parol, not to contradict or vary, but to destroy a written instrument. Such proof does not recognize the contract as ever existing as a valid agreement and is received from the necessity of the case to show that that which appears to be', is not and never was a contract.”
The oral contract on which the plaintiff relies was not a contract for repairs after the commencement of the lease, nor yet a contract to repair an existing building preparatory to the beginning of a lease. It was a contract to create a building for a particular purpose. Until the building was constructed no lease thereof could be made. The proposed lease, therefore, was clearly conditional on the oral agreement
In Wilson v. Deen (74 N. Y. 531) the plaintiff sought to cancel a lease on the ground that the defendant faffed to perform an oral agreement not covered by its terms. It was held that no ground for equitable relief was established, but the court at page 538 recognized the distinction above indicated as follows: “ Reference has not been made to a class of cases in which oral or parol agreements have been held to be collateral to a deed cotemporaneously executed, and not merged in- it, for if the present case could be brought within the principle of those cases, it would not help the plaintiffs, as their only remedy would be an action for damages • for the breach of the parol contract.”
In Mann v. Nunn (43 L. J. [C. P.] 241), a case “ where a lessor promised that if the proposed lessee would take the lease of a house, he would put the house in a state fit for habitation, the promise was held to be collateral to the written lease and provable by parol evidence for the purpose of recovering damages for the breach of it.” This quotation was recited approvingly in Chapin v. Dobson (78 N. Y. 74, 81).
In Hall v. Beston (16 Misc. Rep. 528) the court said in its opinion: “ In Clenighan v. McFarland, 11 N. Y. Supp. 719, the oral agreement was to put premises in repair before the commencement of the term, and as a condition precedent to the operation of the lease. So, in Mann v. Nunn, 43 L. J. C. P. 241, the agreement was to put an unfinished house in
Cases holding that - prior or contemporaneous oral agreements are merged in a written lease differ materially in their facts from the present case. Instances of such cases are Daly v. Piza (105 App. Div. 496) and Smith v. Smull (69 id. 452), where the distinction is sharply indicated. In the first case it was expressly stated: “It is not claimed that the written lease was not to take effect until the terms of the oral agreement had been complied with," and in the latter case it was said: “ The case is not presented of an oral agreement by which it was arranged that the written lease was not to take effect until certain conditions were performed." In the case before us there was not even a building when the oral contract was made which could be the subject of a lease. The oral contract contemplated the construction of a building for a certain purpose and the execution of a lease in respect thereto after the creation of the building. Clearly the lease was not to be effective until the oral conditions were performed. The condition under which the lease was to be executed was that a building was to be constructed capable of carrying a certain weight. 'Until the defendant complied ■with that condition he had no right to execute the lease. This condition was not observed by the defendant, and within the authorities his failure to observe the same gives the plaintiff a cause of action for damages which he has sustained by reason of such failure.
The judgment should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred; H. T. Kellogg, J., not sitting.
Judgment reversed and new trial granted, with costs to appellant to abide event.