44 N.J.L. 331 | N.J. | 1882
The opinion of the court was delivered by
The action is in form an action of trespass on the case upon promises.
The declaration alleges that the defendants were desirous of demising and letting the said factory to the plaintiffs; that they were informed by the plaintiffs that the plaintiffs were desirous of the said premises for the purpose of manufacturing buttons, and that it was necessary to have power and steam, in order to carry on said manufacturing business ¡ and that if the said defendants would furnish the said plaintiffs with a good engine and boiler, they, the said plaintiffs, would hire said premises; and thereupon the said defendants then and there expressly warranted and guaranteed to the said plaintiffs that the engine and boiler situate on the said premises were in thorough repair, and would furnish all the steam
Naumberg, one of the plaintiffs, testified that they were looking for a suitable factory in the city, and that “ amongst others, I heard of that place being vacated by Young and Morgan; Mr. Young was not in the first time I called ; the second time I found him, and I told him I wanted a place furnished with a suitable engine and boiler to carry on our business with, and he told me then that this shop would be just the place for me; and he told me further that the boiler and engine was in thorough repair; and I asked him about the rent, and one thing and another, and I told him I would see him again in a day or so; I saw him again, and I told him that I am not versed well in machinery, and I wanted a place that was perfectly satisfactory in that respect; and he told me he would guarantee that the boiler and engine was in thorough repair, and that we would have more than sufficient steam and power out of that engine and boiler; in consideration of that we made the lease.”
Neither in the declaration nor on the evidence do the plaintiffs rely on fraud—false and fraudulent representations by the defendants, whereby they were induced to enter into the lease—1 as a ground for recovering damages. The gravamen of the suit is a warranty or undertaking by the defendants that the engine and boiler were in good repair and capable of supplying the power necessary to carry on the plaintiffs’ business.
The lease is entirely silent on this subject. It contains a demise in the usual form. Only the factory buildings are described as the premises demised. The engine and boiler passed under the lease as fixtures and appendages of the factory buildings. The propositions for examination are, whether, in view of the written lease, parol evidence of a warranty was competent, and whether any undertaking, with respect to the condition and capacity of the engine and boiler, was implied from the letting, under the circumstances of this case.
There is a class of cases where the parties concluding an agreement which is reduced to writing, have, at the same time and on the same consideration, negotiated by parol another agreement which is collateral and on a subject distinct from that to which the written contract relates, in which oral evidence of such an agreement is held to be competent. Lindley v. Lacey, 17 C. B. (N. S.) 578, is a case of this class. The parties were negotiating for the sale and purchase of the fixtures and good will of a business, and their agreement on that subject was reduced to writing. At the same time a promise was made by the defendant in consideration of the plaintiff’s signing, the agreement, that he, the defendant, would settle an action then pending against the plaintiff at the suit of one C. The defendant neglected to settle the suit, and the goods were seized and sold under the judgment recovered therein. In an action for damages for this default, evidence of the prior oral agreement to settle the action was held admissible, notwithstanding the written agreement authorized the defendant to settle C.’s action out of the purchase money. This ruling was made on the ground that the defendant’s promise to settle C.’s claim against the plaintiff and thus stay the action against him, was a thing which was totally collateral and distinct from the agreement for the sale of the goods
Another class of cases in which oral testimony of an agreement by the parties is held to be competent, are those in which the evidence is offered to show that the written agreement was made to take effect upon a condition which was not performed. Pym v. Campbell, 6 E. & B, 370, and Wallis v. Littell, 11 C. B. (N. S.) 369, are cases of this class. In the first of these cases the action was for the-non-performance of an agreement to sell. The plaintiff produced the written agreement, signed by the defendant. The defendant was allowed to prove, by oral testimony, that the agreement was drawn up and signed with the understanding that it should be no bargain until approved by A., and that A. did not approve of it. In the second of these cases the plaintiff declared on an agreement in writing by the defendant to transfer to him a farm the latter held under Lord S., upon the terms and conditions under which the same was held by the defendant under Lord S. In an action for refusing to transfer the farm, the defendant was allowed to prove, by parol, that the agreement was subject to the condition that it should be null and void if Lord S. should not, within a reasonable time, consent and agree to the transfer of the farm to the plaintiff. In cases of this class the oral testimony is received, not with a view to add an additional term to the written agreement in defeasance of it, but for the purpose of showing that the latter did not become an agreement at all.
Three recent English cases have carried the doctrine of the admissibility of parol evidence where there is a written agreement between the parties, to an extreme length. Morgan v. Griffith, L. R., 6 Exch. 70; Erskine v. Adeane, L. R., 8 Ch. App. 756; Mann v. Nunn, 43 L. J., C. P. (N. S.) 241.
Morgan v. Griffith and Erskine v. Adeane are almost identical in their facts. A farmer in treaty for grass lands declined to take them, on the ground that the property was overrun with rabbits. The lease, as prepared in writing, reserved to the lessor the right to kill game. The lessee refused
Morgan v. Griffith was decided upon little consideration. The ground of decision was that the verbal agreement was collateral to the lease, and did not affect the mode of enjoyment of the land demised. Erskine v. Adeane was decided by two equity judges on the authority of Morgan v. Griffith, reversing the decision of Lord Romilly, M. R., who had excluded the evidence, for the reason that the alleged agreement was not a distinct agreement, but an alteration of the original terms of agreement, and, to be binding, should have been inserted in the lease. Morgan v. Griffith was approved in Angell v. Duke, L. R., 10 Q. B. 174; but it is apparent from the report of the latter case that the approbation expressed had reference only to the fact that such an agreement was not within the statute of frauds; for Angell v. Duke, on that occasion, was argued on demurrer, and the only point of demurrer was that the agreement in question was for an interest in lands within the statute of frauds; and it appearing on the face of the pleading that the landlord’s agreement sued on— to put the house in repair and send more furniture into it— was antecedent to and collateral to the contract of letting, the declaration was sustained. But at the trial oral testimony was tendered of the alleged promise in the course of a treaty for the lease, and the lease containing a demise of the house and the furniture in it, comprised in a schedule annexed, Blackburn, J., rejected the testimony, and held that the lease was conclusive as to all that referred to the taking of the house and furniture, and his ruling was sustained by the court in banc. Angell v. Duke, 32 L. T. (N. S.) 320 ; 23 Weekly Rep. 548.
In Mann v. Nunn the defendant let a messuage in an unfinished state, by a written agreement. Before and at the time of signing the agreement, he verbally promised to put the
It must be borne in mind that we are not dealing with the question as to what promises and undertakings between the parties may, in themselves, be considered collateral or conditional the one to the other, but with the salutary rule of evidence that the written agreement shall be the only exponent of the contract, as finally concluded between the parties, and that proof by oral testimony of what was said or done during the negotiations shall not be received, either to contradict the written contract or to supply terms with respect to which the writing is silent. This rule of the common law may be traced back to a remote antiquity. It is a rule founded on the obvious inconvenience and injustice that would result if matters in writing, made by advice and on consideration, and intended finally to embody the entire agreement between the parties, were liable to be controlled by what Lord Coke expressively calls “ the uncertain testimony of slippery memory.” 2 Taylor on Ev., § 1035.
When the terms of the agreement are reduced to writing, the document itself, being constituted by the parties as the true and proper exposition of their admissions and intentions, is the only instrument of evidence in respect of that agreement which the law will recognize, so long as it exists, for the purpose of evidence. 3 Starkie on Ev. 1002.
Undoubtedly this rule of evidence presupposes that the
The only safe criterion of the completeness of a written contract as a full expression of the terms of the parties’ agreement, is the contract itself. When parties have deliberately put their mutual engagements into writing in such language as imports a legal obligation, it is only reasonable to presume that they have introduced into the written instrument every material term and circumstance; and, consequently, all parol testimony of conversations held between the parties, or of declarations made by either of them, whether before or after, or at the time of the completion of the contract, will be rejected. 2 Taylor on Ev., § 1035. If the written contracts purport to contain the whole agreement, and it is not apparent from the writing itself that something is left out to be supplied by extrinsic evidence, parol evidence to vary or add to its terms is not admissible. Hei, Adm’r, v. Heller, 53 Wis. 415. “If the instrument,” says Chief Justice Erle in Lindley v, Lacey, “ shows that it was meant to contain the
Nor can this salutary rule of evidence, which is indispensable to the security of contracting parties, be maintained in its integrity in the admission of oral testimony in relation to matters which, in a general sense, might be considered as collateral to the contract. An exception of such a compass would, in a great variety of cases, entirely displace the rule and make it of little value. For instance, in contracts of letting, the usual covenants—such as for repairs and improvements, the payment of taxes, rates, assessments and insurance, the mode of cultivation or occupation, and the like—are all collateral to the demise of the land; and if oral testimony be received to prove the agreements of the landlord or tenant on .such subjects, the written lease would be of little avail. To justify the admission of a parol promise by one of the contracting parties to a written contract, on the ground that the promise was collateral, the promise must not only be collateral, but must, as in Lindley v. Lacey, relate to a subject distinct from that to which the written contract applies. In Dutton v. Gerrish, 9 Cush. 89, a warehouse was let by a written lease. Parol evidence of a warranty by the lessor at the time of the letting that the premises were fit for the purpose for which they were let, was excluded, on the ground, as was said by Chief Justice Shaw, that “if there was'any warranty,, express or implied, it was part of the contract of hiring, and not something separate and independent, and must, therefore, -be found in one of the items or terms of that contract.”
I think it may be considered as settled upon principle, as well as by the weight of authority, that where the written
A warranty of the quality of property is collateral to the sale, for the title will pass without such a warranty; but when such an undertaking is entered into, it will form part of the contract by the agreement of the parties. Benj. on Sales 452. Hence, when the contract of sale has been reduced to writing, parol evidence is inadmissible to add a contract of warranty to the terms of the contract, as expressed in the writing. Kain v. Old, 2 B. & C. 627; Powell v. Edmunds, 12 East 6; Harnor v. Groves, 15 C. B. 667; Mumford v. McPherson, 1 Johns. 414; Van Ostrand v. Reed, 1 Wend. 424; Benj. on Sales 461; Story on Sales, § 358 a. Oral testimony of a warranty is competent only where, as in Allen v. Pink, 4 M.
In the present case the lease is perfect and complete in all its parts. On its face it purports to express the terms of the letting as finally agreed upon. The effort is to. engraft, by parol evidence, a contract of warranty upon a contract in writing, which appears to be complete and perfect., and is silent on that subject. Oral testimony cannot be admitted for this purpose without breaking down the rule which permits parties to make their written contracts the only evidence of their undertakings, and enables them to protect themselves from the hazard of uncertain oral testimony with respect to their engagements. Where the lease contains no warranty of the condition of the premises, declarations of the lessor on that subject are not admissible to create a warranty; such proof would be adding to the written agreement by parol evidence. Dutton v. Gerrish, supra, and Brigham v. Rogers, 17 Mass. 571, are directly in point. In the first of these cases parol evidence of a warranty of the condition of the premises demised—there being a written lease—was excluded; and in the second it was held that, where an estate was demised by lease under seal, no action lay on a parol promise made by the lessor at the time of executing the lease, that the water on the premises demised would be good, and that there would be enough of it, and if not he would make it so.
Nor will a warranty, such as has been sued on, be implied from the contract of letting. The general doctrine of the law is, that upon a demise there is no implied contract that the property is fit for the use for which the lessee requires it, whether for habitation, occupation or cultivation. Sutton v. Temple, 12 M. & W. 52; Hart v. Windsor, Id. 68; Erskine v. Adeane, L. R., 8 Ch. App. 756; Clives v. Willoughby, 7 Hill 83; Dutton v. Gerrish, 9 Cush. 89; Foster v. Peyser, Id. 242; Wood on Rand. & Ten., § 382. There is no implied duty on the owner of a house which is in a ruinous and
Smith v. Marrable, 11 M. & W. 5, contains the only exception to the general rule that from the letting no implied undertaking will arise that the premises are fit for or adapted to the purposes for which they were let. There a furnished house was let to a tenant for a short term—five or six weeks. It was found to be infested with bugs and unfit for habitation. The tenant quit for that reason, and" set up these facts as a defence to an action for use and occupation, and his defence was allowed by the court. This case was explained and distinguished by Lord Abinger in Sutton v. Temple, 12 M. & W. 52, as resting on exceptional grounds. It was greatly shaken by Hart v. Windsor, 12 M. & W. 68, but has since been followed in the English courts as an exceptional case in Wilson v. Finch, L. R., 2 Exch. Div. 336, where the court, following Smith v. Marrable, held that a family taking a lease of a furnished house might refuse to occupy it, and defend an action for rent if the house, owing to defective drainage, was unfit for habitation. The reasoning on which these cases were decided was subjected by Bramhall, L. J., in Robertson v. Amazon Tug and Lighterage Co., 46 L. T. (N. S.) 146, to a criticism bordering on ridicule. Smith v. Marrable was distinguished by Parke, B., in Sutton v. Temple, 12 M. & W. 65, on the ground that the contract was of a mixed nature,
There is no need to discuss the question as to the character of the warranties which will be implied on the hiring of a personal chattel; for the machinery claimed in the present case to have been defective and in an improper condition, consisted of fixtures, let as part anu parcel of the realty. But in the latest English, case on the subject the Court of Appeals decided that, on a letting of a steam-tug for towing barges from Hull to the Brazils, there was no implied warranty that the tug should be in good repair and reasonably efficient for the purposes of the voyage; and the agreement between the parties being in writing, oral testimony of such a warranty was held to be inadmissible. Robertson v. Amazon Tug and Lighterage Co., supra.
The action cannot be maintained on either of the grounds contended for, and the non-suit was properly ordered.