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scription of the rented property :
" The real property situate "in the city
of St. Paul, . . . described as
follows : Premises known as ' No.
771 Fairmount Avenue,' together with
appurtenances. . . . This lease to
cover the property that the house and
barn stand on, only," and it was
held that such description was not
ambiguous, and that parol evidence
tending to enlarge and extend it was
properly excluded as incompetent.

In Morris v. Kettle, 57 N. J. L.
218, 30 Atl. 879, the lease demised
the premises as " the house and
premises . . . known and desig-
nated as No. 264 Johnston Ave., and
all the buildings, outhouses and
premises of such place with the ap-
purtenances." It appeared that the
lessor owned a strip of land on each
side of the lot and that the outhouses
were on the premises on one strip,
but no buildings whatever were on
the other strip ; it was held that in
order to extend the premises of the
lease to the latter strip parol evi-
dence was not admissible for the
lessee to show that when the bar-
gain was made for the lease the
agreement was that he should have
all the property owned by the lessor
at that place.

2. Meredith Mechanic Ass'n v.
American Twist Drill Co., 66 N. H.
267, 20 Atl. 330.



LANDLORD AND TENANT.



S3



premises, in a lease required to be in writing under the statute of
frauds, cannot be supplied by parol evidence.^

(3.) Concerning the Possession and Use of the Premises. — The gen-
eral rule is that parol evidence is not admissible to vary or contradict
the terms of the written lease concerning the use of the premises by
the lessee.*

(4.) Concerning the Condition of the Premises, Repairs, Etc. — Evi-
dence tending to show a contemporaneous oral warranty of the
condition of the premises is not admissible.^



3. Guy V. Barnes, 29 Ind. 103.

4. A written contract to lease,
complete in its terms, cannot be
varied by evidence of a contempo-
raneous oral agreement that the con-
tract was made with the understand-
ing that the lessee and his partner
should occupy the room for a par-
ticular purpose; that such occupancy
was one of the main and essential
conditions of the lease guaranteed;
that, long before the day fixed for
the commencement of the proposed
lease, the lessee and his partner dis-
solved their partnership, and none of
the members of the firm desired the
room in question for the purpose
contemplated; that, at the time les-
see demanded the lease in pursuance
of the agreement, he did so for him-
self alone, and for another purpose.
Snead v. Tietjen (Ariz.), 24 Pac.
324.

Where the written lease specifies
the purpose for which the premises
were to be used, parol evidence can-
not be received to show an agree-
ment that the lessee had the privilege
of using them for other purposes.
Sientes v. Odier, 17 La. Ann. 153.

In the case of a written lease, evi-
dence of a contemporaneous conver-
sation between the parties in relation
to the purpose for which the lease
was given and received, and also as
to the character of the land, for the
purpose of showing the intention of
the parties to the lease as to the use
to be made of the land, is not admis-
sible in aid of the construction of the
lease where there is no ambiguity
in its terms. Burr 7'. Spencer, 26
Conn. 159, 68 Am. Dec. 379.

In Haycock v. Johnston, 81 Minn.
49, 83 N. W. 494, it appeared that
plaintiff leased to defendant the
premises for the term of five years.
This action was brought to recover



rent due under the terms of the lease.
Defendant interposed the defense
that at the time the lease was exe-
cuted, and as a part of that trans-
action, plaintiff specially agreed, by
parol, not to erect a new dwelling
within twenty-four feet of the rented
building; that plaintiff violated such
special agreement, erected a new
building within fourteen feet, and
thereby evicted defendant from a
portion of the leased premises. It
was held that evidence tending to
prove the alleged parol special agree-
ment was incompetent, as tending to
vary and contradict the terms of the
written lease.

In ejectment against an assignee of
the lessee, parol evidence that it was
verbally agreed between the parties
to the lease that the premises should
be used only for a certain purpose, or
that the lessor would rent to no one
but the. lessee, is not admissible.
Rickard v. Dana, 74 Vt. 74, 52 Atl.

113-

It is not competent for a lessee to
show by parol evidence a contem-
poraneous promise on the part of the
lessor that the adjoining premises
should not be used in a manner in-
consistent with the business of the
lessee or so as to annoy him. Gray
V. Gaff, 8 Mo. App. 329-

5. York V. Steward, 21 Mont. 515,
55 Pac. 29, 43 L. R. A. 125; Stevens
V. Pierce, 151 Mass. 207, 23 N. E.
1006.

Where the lease contains no war-
ranty, express or implied, that the
premises are fit for the purposes for
which they are hired, evidence of
declarations of the lessor to that ef-
fect made at the time of the execu-
tion of the lease is not admissible.
Dutton v. Gerrish, 9 Cush. (Mass.)
89, 55 Am. Dec. 45.

Supply of Water — In Cooney v.

Vol. VIII



54



LANDLORD AND TENANT.



Repairs. — And where the lease contains no covenant to repair,
parol evidence of a promise by the lessor to repair, made prior to
the execution of the lease, is not admissible.® Nor, where the lease
contains covenants in relation to repairs, is it proper to receive evi-
dence of an agreement by the lessor to make other repairs,^ or to
vary the agreement as made.* Where the lessee takes upon himself.



Murray, 45 111. App. 463, where the
lease contains no provision with ref-
erence to the landlord furnishing a
sufficient supply of water on the
premises for the use of the lessee,
it was held that evidence of a con-
temporaneous agreement by him to
that eflfect is not admissible. See
also Brigham v. Rogers, 17 Mass.

571-

Condition of Fixtures and Ma-
chinery — In the case of a lease of a
factory and the fixtures and ma-
chinery in it, which is silent as to
the condition of the fixtures and ma-
chinery, parol evidence of a warranty
by the lessor that the machinery is in
good repair and of sufficient capacity
to do the work for which the prem-
ises were let is not admissible.
Naumberg v. Young, 44 N. J. L. 331,
43 Am. Rep. 380.

In Easterby v. Heilbron, i McMull.
(S. C.) 462, the demised premises
consisted of a certain lot, " together
with the three brick tenement dwell-
ing houses thereon, and also the
brick buildings now in progress of
being erected thereon;" the lessee
covenanting to pay rent at a certain
rate for the lot with the buildings
already erected thereon until the
brick buildings in process of con-
struction were completed, and as
soon as those were completed, to pay
rent at an increased rate; the lessor
covenanting to finish and complete
the brick buildings in question ac-
cording to his own plans and direc-
tions, and that whenever he declared
the buildings completed and finished,
of which he was to be the sole and
exclusive judge, and tendered the use
and occupation thereof to the lessee,
the latter was bound to receive and
accept them without any objection
whatever. Subsequently the lessor
tendered the lessee the buildings, the
lessee taking possession and occupy-
ing them. Afterward the lessor dis-
trained for the advance rent and the
lessee replevied; it was held that the

Vol. vm



lessee could not prove that at the
time of the notice and tender by the
lessor the new buildings were not
finished and completed ; that to al-
low the tenant under such covenant
to offer proof that the houses were
unfinished would be to repeal the
agreement altogether."

6. Roehrs v. Timmins, 28 Ind.
App. 578, 63 N. E. 481 ; Eberle v.
Girard L. Ins. A. & T. Co. (Pa.),
4 Atl. 808 ; Van Derhoef v. Hartman,
63 App. Div. 419, 71 N. Y. Supp. 552.

In Howard v. Thomas, 12 Ohio
St. 201, an action by a lessee to re-
cover damages from his lessor for
not repairing the premises, it was
held that the plaintiff could not show
by parol evidence that at the time of
the execution of the written lease he
refused to sign it unless the lessor
would promise to repair the premises,
and that thereupon the defendant
promised so to do, in consideration
of which the lessee signed the lease.
In this case it was insisted that the
rule against parol evidence did not
apply because the verbal promise was
the consideration of signing the lease,
but the court said : " It is obvious
that the same might be claimed as
being implied in every case when it
is shown by parol that some stipula-
tion ought to have been but was not
expressed in the writing. There
may be cases where an instrument
executed is not intended to express
the entire agreement of the parties,
but is in execution of some distinct
and separable part." Holding that
case not to fall within the exception.

7. Smith V. Sniull, 69 App. Div.
452, 74 N. Y. Supp. 1061.

8. Colhoun V. Wilson, 27 Gratt.
(Va.) 639, where the lease stipulated
for certain repairs to be made by the
lessor upon the premises, but fixed
no time within which the repairs
were to be made, it was held that
the time within which the lessor was
to perform the covenant was limited
only by the duration of the term;



LANDLORD AND TENANT.



55



by the express terms of the lease, the duty of making repairs, he can-
not, m the absence of fraud, accident or mistake, prove a parol
agreement by the lessor to make repairs.^

(5.) Concerning: the Rent. — When the parties have reduced to
writmg their agreement in regard to the rent to be paid by the
tenant, parol evidence is not admissible to vary or contradict the
agreement so written, ^^ either for the purpose of increasing or dimin-
ishing the sum so agreed upon. The written contract must speak for



that he had until the end of the term
to make the repairs, and that parol
evidence was inadmissible to prove a
verbal agreement by the lessor to
make repairs by a certain time. See
also Cronin v. Epstein, 19 N. Y. St.
806, 2 N. Y. Supp. 709.

9. Wodock V. Robinson, 148 Pa.
St. 503, 24 Atl. 72, ■ Martin v. Berens,
67 Pa. St. 459. In Kline v. McLain,
33 W. Va. 32. 10 S. E. ir, 5 L. R. A.
400, where the lease provided that
the lessee was to keep the premises
in repair except as to unavoidable
accidents and natural wear and tear,
it was held that he could not, in sup-
port of an action by him against the
lessor for failure to repair damages
to the premises caused by unavoid-
able accidents, show a contempora-
neous agreement by the lessor to
make repairs.

In Nicoll V. Burke, 78 N. Y. 580,
where a lease, by the terms of which
the tenant was to keep the premises
in repair, was renewed from year to
year by indorsements thereon, it was
held that evidence of a verbal agree-
ment between the parties prior to the
last renewal, by which the landlord
was to rnake the repairs, and of the
bad condition of the premises caused
by failure so to do, was properly ex-
cluded.

10. Smith V. McEvoy, 98 111. App.
330, where the lease provided that
the lessee was to pay the lessor as
rent for the premises a certain por-
tion of all the grain raised on the
premises, to be delivered as stipu-
lated; and it was held that the les-
see could not show by parol evidence
that it was agreed at the time of the
lease that the lessor should furnish
seed grain and pay for thrashing.

Where the lease provides that
failure of the lessee to make any one
of the payments when due will ren-
der the lease null and void, it is not



permissible to show that it was
agreed between the parties that the
lessee could at any time relieve
himself of all liability and terminate
the lease by declining to pay any one
of the payments when due. Hall v.
Phillips. 164 Pa. St. 494, 30 Atl. 353.
In construing a stipulation in a
lease for years that the lessee shall
pay the rent reserved except in cases
of unavoidable casualty, the declara-
tions of the lessor as to his under-
standing of the terms of the lease
arc not admissible. Bigelow v. Col-
lamore, 5 Cush. (Mass.) 226.

In Powell V. Thompson, 80 Ala.
51, an action by a landlord against
his tenant and others for removing
crops grown on the rented premises,
with notice of the existence of the
plaintiff's lien for rent for which the
tenant had executed his rent note
stipulating for the delivery of cer-
tain bales of cotton, it was held that
the plaintiff should not have been al-
lowed to prove that it was a rule or
custom he had made on his planta-
tion that he should have all the cot-
ton seed raised on his land by his
tenants, for the reason (i) that one
man alone cannot establish a custom
or usage, and (2) such evidence con-
tradicted the express terms of the
rent note.

A landlord cannot show by parol
evidence that a lessee for years
agreed to give notes in pracsenti for
the rents of succeeding years where
the lease is reduced to writing and
contains no such agreement, and
there is no averment that owing to
fraud, accident or mistake the writ-
ing does not fully express the con-
current intention of the parties.
Pickett V. Ferguson, 45 Ark. 177, 55
Am. Rep. 545.

Medium of Payment of Rent.
Where rent reserved in the lease is
payable in money, parol evidence to

Vol. VIII



56



LANDLORD AND TENANT.



itself." There is authority, however, to the effect that it is permis-
sible to show a consideration additional to that expressed in the
lease, where it is of the same character.^^

(6.) Concerning Alterations, Etc. — Parol evidence is not admissible
to vary the terms of the lease concerning alterations ;^^ neither can



show that at least a portion of the
rent was to be taken out in board-
ing is not admissible. Stull 7'.
Thompson, 154 Pa. St. 43, 25 Atl.
890.

11. Williams v. Kent, 67 Md. ,350.
10 Atl. 228, where it was accordingly
held that it could not be shown by
the lessee that, during the negotia-
tions for proposed improvements and
additions to the demised premises,
the lessor had verbally agreed to pay
the water assessments necessary for
their maintenance. See also Preston
V. Merceau, 2 Wm. Bl. (Eng.) 1249.
Powell V. Thompson, 80 Ala. 51,
where it was held error to permit the
landlord to show that in addition to
the twenty bales of cotton agreed in
writing to be delivered as rent, it
was orally agreed to deliver as part
of the same consideration twenty-
eight hundred bushels of cotton seed.

Where a lease under seal for a
term fixes the amount of rent to be
paid monthly, evidence of a parol
agreement changing the amount of
rent to be paid for the unexpired
term, which leaves the lease un-
changed in other respects, is not ad-
missible. Barnett v. Barnes, jt, 111.
216. See also Loach v. Farnum, 90
111. 368.

A lessee in possession under a
lease on its face complete in every
respect cannot show that prior to the
execution of the lease it was agreed
and understood that when the prem-
ises were sold by the lessor the pro-
ceeds of sale should be credited upon
the note given by the lessee for
rent. Boone v. Mierow (Tex. Civ.
-App.), 76 S. W. yy2, so holding
under the rule that parol evidence of
a consideration different from or ad-
ditional to that stated in the writing
is not admissible where the consider-
ation is contractual in its nature.

12. Raub V. Barbour, 6 Mack. (D.
C.) 245. In this case the lease con-
tained a covenant that the landlord
would sell and convey to the tenant
the premises at a designated price at

Vol. VIII



any time during the life of the lease,
and it was held error to refuse to
permit the landlord to show that the
tenant had verbally promised him
that if he would execute the lease
with the covenant in question in-
serted, he, the tenant, would in con-
sideration of its insertion pay to the
landlord, in addition to the consid-
eration to be paid for the lease of
the premises, one-half of whatever
profit he might make and receive by
reason of any sale or assignment he
might subsequently make of his
right, title and interest under and by
virtue of the covenant.

In an action to enforce a lien for
rent under a written lease the recitals
therein as to the rental stated are
not conclusive as between the landlord
and tenant, and it is proper to per-
mit parol evidence to show that the
rent agreed to be paid by the terms
of the lease was not the real rental
for the use of the premises, but in-
cluded additional indebtedness. First
Nat. Bank z-. Flynn, 117 Iowa 493,
91 N. W. 784-

13. Covenant Against Alterations.
Where the lease contains a covenant
against alterations, parol evidence is
not admissible to show that when the
lease was made it was expressly
agreed that any such alterations as
would not injure the tenement, and
which might be again so changed
as to return the tenement to the con-
dition it was in when leased, should
not be deemed a violation of such
covenant. Walker v. Engler, 30 Mo.
130.

Where the parties have entered
into a written lease of premises " in
the present condition," evidence of a
prior verbal agreement, by which the
lessor after the lease began was to
make a substantial addition to the
property, is not admissible. Tracy v.
Union Iron Wks. Co., 104 Mo. 193,
16 So. 203, where it was proposed to
show by such evidence that the lessor
had agreed to add a switch to con-



LANDLORD AND TENANT.



57



evidence of a contemporaneous oral agreement concerning improve-
ments be introduced for that purpose.'^

' b. Collateral and Independent Facts. — (1.) Generally. — Parol
evidence may be given of collateral and independent facts which tend
to support the lease/" provided it is not offered to vary the agreement
and is consistent with the instrument."

(2.) Concerning the Premises. — The rule prohibiting parol evidence
does not apply to a previous distinct collateral agreement upon a
collateral and independent consideration concerning the premises
demised, which did not merge in the subsequent written contract of

hirin<^.^^

(3 r Concerning Repairs. — Where the agreement by the lessor to
repair was collateral it may be shown by parol evidence/^ provided



nect the premises with a railroad
line.

In McLean v. Nicol, 43 Minn. 169,
45 N. W. 15, where the written lease
provided that the defendant should
pay rent at a certain rate until gas
and water service should be intro-
duced into the premises, and an in-
creased rental after that time, and
contained no express covenant by the
lessor to introduce gas and water,
it was held that the tenant could not
introduce evidence of such a con-
temporaneous oral agreement.

Parol evidence is not admissible
to show that the words "the said
house is to be furnished with gas,"
as used in a written lease, meant
that the landlord should supply gas
fixtures, and not that he should pay
for the gas consumed in the house.
Thorpe v. Sughi, 33 Ala. 330.

14. Evidence of a contempo-
raneous representation by the lessor
that he would put certain improve-
ments in the building, and that the
lessee, relying on the representations,
signed the lease, is not admissible in
the absence of fraud. Lerch v.
Sioux City Times Co., 91 Iowa 750,
60 N. W. 611. See also Lynch v.
Lauer, 14 Misc. 252, 35 N. Y. Supp.
715.

In Louisiana, the Civil Code rec-
ognizes the right of the tenant to put
improvements on the leased prem-
ises, and also recognizes his right of
ownership in them, and accordingly
improvements so made are the per-
sonal property of the tenant, and any
agreement relative to them may be
proved by parol evidence. McDon-
ald V. Stewart, 18 La. Ann. 90.



15. Stearns z: Lichtenstein, 48
App. Div. 498, 62 N. Y. Supp. 949;
Raub v. Barbour, 6 Mack. (D. C.)

245-

16. In Hamilton v. Emerson, 31
Misc. 257. 64 N. Y. Supp. 48, where
the lease provided that the lessor
was not responsible for any latent
defect or change of condition in the
premises, or for damages to the
same; that the rent was not to be
withheld or diminished on account
thereof, and required the lessee to
keep the premises in repair at his
own expense, it was held that evi-
dence of an agreement on the part
of the lessor that the premises were
in a tenantable condition and fit for
occupancy was not admissible.

17. As, for example, a promise by
the lessor that certain fixtures con-
sisting of shelving, etc.. then on the
premises should be retained and re-
main there, so that the lessee might
enjoy the benefit of them if he took
the lease. Lewis v. Seabery, 74 N.

Y. 409- .

18. Van Derhoef v. Hartman, 63
App. Div. 419, 71 N. Y. Supp. 552-

In Caulk v. Everly, 6 Whart.
(Pa.) 303, an action by a lessee
against his lessor to recover for
moneys expended in repairs, it was
held that parol evidence was ad-
missible to prove that after the lease
had been executed and taken away
the lessor returned to have it at-
tested; that the lessee then men-
tioned that certain necessary repairs
had been omitted and that the lessor
agreed that they should be made at
his expense by the lessee. The
court said: "Letting and repairing

Vol. VIII



58



LANDLORD AND TENANT.



it be not inconsistent with, though it may be wholly independent of,
the terms of the written contract.^*

c. Writing Not Embodying Whole of Agreement. — (1.) Generally.
When a tenant promised in writing to pay a stipulated rent, but so
much of the contract as was intended to state the duties of the land-
lord was not reduced to writing, but was left to rest in parol, oral
evidence of that portion of the contract is admissible.^"

Omission. — But parol evidence to supply an omission as to the
intended use of the premises is not admissible where its effect is to
permit the court to make a contract for the parties which they have
failed to make for themselves.^^



are so far different that they may be
subjects of distinct contracts; and as
the execution of the lease was com-
plete in this instance by the seal and
delivery — the attestation of it by
witnesses being unessential — the
agreement to repair was made at a
time subsequent to it. . . . 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."

In Heath v. West, 68 Ind. 548,
where the controversy was as to
whether or not the tenant had been
injured by a breach of a covenant on
the part of his landlord to build cer-
tain fences, it was held that inas-
much as the written lease was silent
as to what particular fences or as
to how much fencing was necessary
to inclose the lands in the matter
contemplated by the parties, oral
testimony covering those questions
did not relate to a matter covered
by or included in the lease, and
hence was properly received.

19. Williams v. Kent, 67 Md. 350,
ID Atl. 228.

20. As, for example, that he
agreed with the tenant, although
contemporaneously with the execu-
tion of the rent note, to make re-
pairs on the rented premises, or in-
curred other like liabihty. Powell v.
Thompson, 80 Ala. 51; Vandegrift
V. Abbott, 75 Ala. 487; Murphy v.
Farley, 124 Ala. 279, 27 So. 442.

Parol evidence that the lessor
agreed to put the demised premises
in a safe condition or represented
that he had made them safe, which
induced the lessee to accept the
lease, or which was to be a part of
the contract, is admissible where the

Vol. VIII



lease relates only to the obligations
and undertakings imposed upon the
tenant, making not the remotest
reference to any act to be done or
obligation assumed, or representa-
tion made by the lessor. Such evi-
dence shows an independent collat-
eral agreement to the contract of
renting and an inducement to make
it not embraced in the written lease.
Hines v. Willcox, 96 Tenn. 148, 33
S. W. 914, 54 Am. St. Rep. 823, 34
L. R. A. 824.

21. Nostrand v. Hughes, 54 App.
Div. 602. 67 N. Y. Supp. ^2, where
the lease provided that the premises
were " to be occupied . . . and
not otherwise ;" and it was held error
to permit the introduction of parol
evidence of an alleged verbal agree-
ment on the part of the lessor to sign
a consent required by law for the use
of the premises for the sale of
liquors. The court said that the ef-
fect of the parol evidence was to ask
the court to read into the contract a
covenant on the part of the lessor to
sign a consent required by law which
would make him liable to an action
for civil damages for the abuse of the
provisions of the law by the lessee



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