140 Mass. 261 | Mass. | 1885
While recognizing and giving effect to the rule of law, that a creditor cannot bind himself by a simple agreement to accept a smaller sum in lieu of an ascertained existing debt of a larger amount, because such agreement is without consideration, courts have nevertheless often declared that the rule is not tp be extended beyond its precise import, and, especially if a consideration for such agreement is found to exist, of which the law can take notice, that courts will not inquire into its adequacy. Langdon v. Langdon, 4 Gray, 186. Brooks v. White, 2 Met. 283. Simmons v. Almy, 103 Mass. 33. The question what will constitute a sufficient consideration for such agreement has been discussed in many cases. See Fitch v. Sutton, 5 East, 230; Brooks v. White, ubi supra; Perkins v. Lockwood, 100 Mass. 249; Train v. Gold, 5 Pick. 380; Warren v. Skinner, 20 Conn. 559; Met. Con. 192; 1 Smith’s Lead. Cas. (8th Am. ed.) 644.
It is also now well settled, that ordinarily a written contract, before breach, may be varied by a subsequent oral agreement, made on a sufficient consideration, as to the terms of it which are to be observed in the future. Such a subsequent oral agreement may enlarge the time of performance, or may vary any other terms of the contract, or may waive and discharge it altogether. Cummings v. Arnold, 3 Met. 486, 489. Holmes v. Doane, 9 Cush. 135. Goodrich v. Longley, 4 Gray, 379, 383.
This rule in Massachusetts has been held applicable to a case where the original contract fell within the operation of the stat ute of frauds. Cummings v. Arnold, ubi supra. Stearns v. Hall, 9 Cush. 31. But in the present case there is no question under the statute of frauds. In reference to contracts under seal, it was formerly held, especially in England, that they could not be thus varied. But in the United States the tendency of judicial decision has been to apply the same rule in this respect to sealed instruments as to simple contracts. In Munroe v. Perkins, 9 Pick. 298, the plaintiff, by an instrument under seal, agreed to erect a building at a fixed price, which was not an adequate compensation, and, having done part of the work, refused to proceed; but upon a parol promise by the defendant that he should be paid for his labor and materials, and should not suffer, he went on and finished the "building, and it was held that he was entitled to recover in assumpsit upon the paroi promise. The court say: “ The paroi promise, it is contended, was without consideration. This depends entirely on the question, whether the first contract was waived. The plaintiff having refused to perform that contract, as he might do, subjecting himself to such damages as the other parties might show they were entitled to recover, he afterward went on upon the faith of the new promise and finished the work. This was a sufficient consideration.” In Mill Dam Foundery v. Hovey, 21 Pick. 417, it was held that the time of performance of a sealed agreement to make certain plane-irons within one year might be extended by a new agreement after-wards entered into between the parties, not under seal, but upon a sufficient consideration. In Blasdell v. Souther, 6 Gray, 149, 151, it was said by Chief Justice Shaw, in general terras, “We suppose there is no doubt that a valid oral contract may be made upon the basis of a preexisting contract, either by specialty or by an unsealed written instrument, modifying, changing, and altering the terms of the written agreement.” See also Barker v. Troy & Rutland Railroad, 27 Vt. 766; Lawrence v. Davey, 28 Vt. 264; Fleming v. Gilbert, 3 Johns. 528 ; Langworthy v. Smith, 2 Wend. 587; Lattimore v. Harsen, 14 Johns. 330; Stryker v. Vanderbilt, 1 Dutch. 482; McGrann v. North Lebanon Railroad,
In the present case, we are of opinion that it was legally competent for the defendant to prove, as a defence to the plaintiff’s action for the rent, that, after the delivery of the lease, the plaintiffs, for a good consideration, entered into an oral agreement that for the future the rent should be reduced; and that the defendant’s testimony, and his offer of proof, in respect to the plaintiffs’ alleged agreement in the fall of 1877, were sufficient, if believed, to warrant the jury in finding that the plaintiffs were not entitled to recover the amount so agreed to be abated. Agreeing to take in a partner for the ensuing three years, and to borrow the sum of $40,000 and put the same into the business, provided the rent should be reduced, and actually fulfilling that agreement in consequence of the plaintiffs’ promise to reduce the rent, and continuing the business under these circumstances for three years, constituted a change of position on the part of the defendant, which might be of advantage to the plaintiffs, and also of detriment to the defendant, provided the plaintiffs’ promise should not be kept. Train v. Gold, 5 Pick. 385. Hubbard v. Coolidge, 1 Met. 84, 92. Peck v. Requa, 13 Gray, 407. Rollins v. Marsh, 128 Mass. 116. Hinckley v. Arey, 27 Maine, 362. Moore v. Detroit Locomotive Works, 14 Mich. 266.
In respect to the claim of rent for the first year now in controversy, the true construction to be put upon the defendant’s testimony, as reported, is a matter of doubt. It is open to the construction that he was merely expressing an opinion or fear that he should not thereafter be able to pay the rent in full, but that he should fail in business at some time in the future, unless a reduction in the rent should be made. Inasmuch as there must be a new trial, when the whole case will be open, we do not now determine the question whether the defendant’s testimony in respect to the plaintiff’s alleged agreement in the fall of 1876 was sufficient to warrant a finding in the defendant’s favor upon that item.
New trial granted.