6 Whart. 303 | Pa. | 1841
The opinion of the court was delivered by
That a contract cannot rest partly in writing and partly in parol, was asserted in Share v. Anderson; and doubtless there are authorities to show that all stipulations on the same subject, and at the same time, constitute but one agreement. But letting and repairing are so far different that they may be subjects of distinct contracts; and as the execution of the lease was complete, in this instance, by the sealing and delivery—the attestation of it by witnesses being unessential—the agreement to repair was made at a time subsequent to it. The witnesses say that the lease had been taken away; that the lessor had returned to have it attested; that the lessee then mentioned the filling up of the wharf as a thing omitted; and that the lessor agreed that it should be done by the lessee at the lessor’s expense. It was evidently an afterthought; but even had the written contract not been closed, the parol promise might, nevertheless, be set up to frustrate the lessor’s meditated fraud—a principle intimated in Share v. Anderson, and asserted in cases both previous and subsequent to it; for since the time of Hurst v. Kirkbride, cited 1 Yeates, 159, and more distinctly stated by Chief Justice Tilghman, in 1 Binney, 616, this court has held it fraudulent to attempt an advantage from a written agreement executed on the faith of parol stipulations not intended to' be performed. Thus in M‘Meen v. Owen, (2 Dall. 173; S. C. 1 Yeates, 185,) parol evidence was received to show that, at the time of executing
The other point is equally clear. Upon the defendant’s promise, if it be a distinct agreement, the plaintiff can certainly maintain an action at law; and even if it be an omitted condition of the lease, it might be separately enforced in equity, for which an action at law is, with us, a substitute. The lessee might undoubtedly defalcate his demand from the rent; but to enjoin the lessor, would be an inadequate remedy in a case where rent had not accrued; as for instance, where the lessor had evicted the lessee before the end of the quarter-. Yet every consideration of justice requires that, having received all for which he stipulated, his own part of the contract should be enforced.'
Judgment affirmed.