| Mich. | Jul 12, 1869
Thompson sued Yanderkarr in trespass for entering upon certain lands and taking and carrying away a quantity of wheat. It appears that Yanderkarr sold Thompson the lands by contract of sale in the ordinary form, except that it gave Thompson the right to the immediate possession, use and cultivation of the lands; and the wheat now in question was at that time a growing crop upon them. The wheat is not mentioned in the contract, and Yanderkarr sought to prove on the trial that by verbal agreement at the time the contract was made, the wheat was reserved to him. The Circuit Judge rejected this evidence, and his ruling upon this point presents the first question for our consideration.
We are aware that there are some decisions which sustain a parol reservation of growing crops in a sale and conveyance of lands, and which, therefore, might justify the evidence sought to be introduced in this case; but these decisions, we think, are not only unsound in principle, but they are opposed to the current of authority, and to the well understood rule in this State. The purpose of such,, evidence is to vary the legal effect of the conveyance by establishing a contemporaneous qualifying agreement; and it therefore violates a fundamental rule of evidence, to say nothing of any question that might be raised by it under the Statute of Frauds. We think the Circuit Judge committed no error in this ruling.
We are not to be understood by this opinion as holding or intimating that a parol sale or any parol contract relating to a growing crop, made upon valuable consideration, is invalid. We only hold that a parol contract contemporaneous with the written contract cannot be shown. A contract made at any other time stands on altogether a different footing.
If the first ruling was correct, it would seem that this must be correct also, inasmuch as what was said immedidiately after the signing of a contract, and while the parties were still together, and having no reference to any new agreement or consideration must be looked upon as contemporaneous with that formality, and as constituting a part of the same transaction, the result of which was evidenced by the written instrument. It is claimed by counsel, however, that, at least, this conversation after the contract was signed, if it showed Thompson’s permission to Yanderkarr to harvest and remove the wheat, would operate as a parol license, which, until revoked, would protect the licensee against an action of trespass. The answer to this is, that in trespass the defense of license could only be made under a special plea or notice; and no such special defense is made by notice in this case. The defendant, therefore, was not in position to raise this question on the trial.
The judgment must be affirmed with costs.