Jungerman v. Bovee
Before: Baldwin
Synopsis
In this case it was held that a lease, dated Dec. 1st, 1855, and running three years and nine months, with power in the lessee to remove buildings erected by Mm, etc., was surrendered and its provisions abrogated by a second lease dated Dec. 6th, 1856, containing different terms, and among them, a clause for the surrender of the premises at the expiration of the term, “ reasonable use and wear thereof and damages by the elements excepted,” and that under the second lease the tenant could not remove the buildings. See facts.
Where a tenant stipulates in a written lease of a lot for the surrender of the premises at the end of the term, “reasonable use and wear thereof and damages by the elements excepted,” evidence of a cotemporaneous oral agreement, that the tenant should have the right, at the expiration of the term, to remove buildings erected by him on the lot, is inadmissible, because contradicting the terms of the lease—the evidence in this case not showing an independent agreement or license to remove the buildings, but simply the lessor’s construction of the lease at the time of its execution.
Query: Whether such a cotemporaneous oral agreement could in any evcnt.be effectual against an assignee of the lease.
The rule that cotemporaneous parol agreements cannot be received to contradict a written contract, applies as well to agreements from which a license is implied, as in this case, as to any other kind of agreement.
Where a lessor sues to enjoin the lessee from taking the bricks from and destroying a brick building erected by the lessee on the lot leased—the tenant claiming the right to remove the building under the terms of the lease—and claims damages in the sum of $1,000, and the answer makes no denial of the damages, and no proof thereof is offered, and the Court, after hearing, grants the injunction but refuses a judgment for damages : Held, that plaintiff was entitled to recover Ms damages; that such form of suit is an unobjectionable mode of concluding the entire controversy.
Held, further, that although plaintiff makes a cross appeal from the refusal to allow his damages as claimed, yet as defendant may have been taken by surprise, this Court will remand the case for trial de novo upon the question of damages, with privilege of amending the pleadings so as fairly to present the issue on this point.
Defendants below and appellants here, on the main question, to wit: the injunction, required to pay costs in this Court on both appeals.
Baldwin, J. delivered the opinion of the Court Field, C. J. concurring.
1. This case is not brought within the principle of Friedman v. Macey. (17 Cal. 226.) The lease in this case seems to be full and explicit in its terms, and these regulate and determine the rights of the parties. The fact that former leases contained different terms, or gave the lessees other rights,-is immaterial; for,by the express terms of this lease, the premises are to be surrendered at the expiration of the term—“ reasonable use and wear thereof, and damages by the. elements excepted.” The inference from the new contract, and from the change of the terms of the old, is irresistible to show that the intent was to surrender the old lease ; indeed, effect cannot otherwise be given to the express provisions of the last contract. See Roberts on Frauds, 254 et seq., as to presumption from a new lease of the surrender of the old.
[3642]. We think the point not well taken that the tenant had a license to remove the buildings. The written contract expressly contradicts this idea. It stipulates for the delivery of the premises, including the buildings, at the expiration of the term. This license is sought to be proved by evidence of a cotemporaneous oral agreement or understanding that the tenant should have the right to remove the buildings. Even if, as against an assignee of the lease, this agreement could, in any event, be effectual, it seems clear to us that such proof would be inadmissible under the circumstances of this case, because contravening the rule that cotemporaneous parol agreements cannot be received to contradict a written contract ; and this rule applies as well to agreements of this sort, from which a license is implied, as to any other. We see nothing in the case in 10 Barbour to support the point of appellants. The evidence of Bosqui does not show an independent agreement or a license, but .merely his construction of the lease ; but if the lease is as we construe it, it is impossible for us to see why a right or privilege, cotemporaneously given by an oral agreement, directly contradicting the effect of the writing, could be set up against the writing.
3. We are of the opinion that the plaintiff is entitled to recover in this action his damages for the injury done by these defendants. This suit is a speedy and unobjectionable mode of concluding the ■entire controversy. The failure of the Court to consider this matter is assigned as error by the plaintiff below on cross appeal. The averment of damages do.es not seem to be denied, and no proof of the amount was made. The case is remanded that this matter may be determined. We think it better not to direct judgment, as the defendant may have been taken by surprise, but remand the case to be tried de novo upon this matter of damages, when the pleadings -may be amended so as to present the issue fairly, if amendments be desired. The decree is in other respects affirmed. Appellants, defendants below, to pay the costs in this Court on both appeals.
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