1 E.D. Smith 253 | New York Court of Common Pleas | 1851
I regret that this judgment cannot be sustained. It appears to me to exhibit a case of hardship in the application of the rule, that a written agreement is to be taken to merge all previous parol stipulations in regard to the subjects embraced therein, or in other words, that “it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, was reduced to writing,” and therefore parol evidence of prior parol promises cannot be received. There is much reason to believe that the plaintiff was, in this case, grossly deceived by assurances on the part of the defendant that have not been performed.
There was no consideration for any subsequent promise to repair, and if no consideration, then no binding promise. The suggestion of the justice, in his reasons for the judgment, is, that the neglect of the defendant to put the house into a tenant-able condition, amounted to an eviction. But, 1st. The house remained in the same condition in which it was when the written agreement was executed. No act of the defendant made it untenantable. The defendant violated no agreement in suffering it to remain in that condition. And, 2d. If the defendant had been bound to repair, his neglect to do so would not have amounted to an eviction, but only to a breach of covenant.
To, say, then, that the tenant was at liberty to abandon the premises for want of repairs, and her consenting to remain was a good consideration for the defendant’s promise to repair, is erroneous, because it assumes that the defendant was already bound to repair, when he was not bound to do so. And also, because if he was bound, his neglect would not authorize such an abandonment, unless, by the terms of the agreement, the repairs were made a condition precedent to the obligation to occupy.
The writing was sufficiently executed by the plaintiff to make it her act. It was taken to her by the witness, Peter J. Sax, for the purpose of being signed. He showed it to her, and read it to her. She said it was all right. She then took a pencil for the purpose of writing her name, but perceived that her name was already written, and she then said she supposed her brother (who it appears was her surety for the payment of rent) had written her name, and that it was all right; that she knew her brother’s writing, and it must be his writing. It also appeared that her brother did sign as surety the previous day, and there was no evidence that he did not sign the plaintiff’s name to the agreement, as she supposed and admitted he had
I think the judgment cannot be sustained consistently with any legal principle, but must be reversed, with costs.
Judgment reversed.