Bowman v. Wright

91 N.W. 580, 65 Neb. 661, 1902 Neb. LEXIS 367

Opinions

Pound, C.

The heirs of a lessor brought this action against the lessee to recover a balance of $25 per month for twenty months upon a written lease. The lease provided for a rent of $75 per month, and it is alleged that but $50 per month was paid during the months in question. In the answer it is alleged that during the term of the lease it was surrendered and abandoned and a new arrangement was made, whereby the defendant was to pay and did pay $50 per month as rent until the lessor’s death, and thereafter to his representatives, which sum was accepted in full. Upon trial to the court, findings and judgment were entered for the plaintiff, from which error is prosecuted.

We think the conclusion reached by the trial judge was right. There is a clear distinction between parol modifica-, tion of an executory written agreement before breach and before the time for performance has arrived and an attempt to satisfy a liquidated and accrued indebtedness by payment and acceptance of a less sum. At any time before breach the parties may change the terms of a written contract by a subsequent parol agreement. Delaney v. Linder, 22 Nebr., 274. And such subsequent agreement requires no new consideration. Morrissey v. Schindler, 18 Nebr., 672; Brown v. Everhard, 52 Wis., 205, 8 N. W. Rep., 725; Ruege v. Gates, 71 Wis., 634, 38 N. W. Rep., 381. As Lord Denman said in Stead v. Dawber, 10 Adol. & E. [Eng.], 57: “The same consideration which existed for the old agreement, is imported into the new agreement, which is substituted for it.” In jurisdictions where sealed instruments are recognized, an executed parol modification will be upheld, even though the contract is under seal. Beach v. Covillard, 4 Cal., 315; Siebert v. Leonard, 17 Minn., 433 [Gil., 410]; McClay v. Gluck, 41 Minn., 193, 42 N. W. Rep., 875; McCreery v. Day

Footnotes

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* 119 N. Y., 1, 23 N. E. Rep., 198; McKenzie v. Harrison, 120 N. Y., 260, 24 N. E. Rep., 458. With respect to agreements and instruments required to be in writing by the statute of frauds, the rule seems to be much the same. There can be no question that such agreements are subject to modification by parol. Delaney v. Linder, supra; Long v. Hart- well, 34 N. J. Law, 116; Doherty v. Doe, 18 Colo., 456, 33 Pac. Rep., 165; Andre v. Graebner, 126 Mich., 116, 85 N. W. Rep., 464. In Reynolds v. Burlington & M. R. R. Co., 11 Nebr., 186, this court held that where the contract was within the purview of the statute of frauds, there must be consideration for a modification by waiving some of its requirements, or else such new agreement must be executed. But if the terms of the new agreement have been fully carried out, the original obligation is discharged, though there was no new consideration. Rucker v. Harrington, 52 Mo. App., 481. This rule has often been applied to reductions of the rent reserved in written leases. Doherty v. Doe, supra; McKenzie v. Harrison,* 120 N. Y., 260, 24 N. E. Rep., 458; Nicoll v. Burke, 8 Abb. N. Cas. [N. Y.] 213; Ossowski v. Wiesner, 101 Wis., 238, 77 N. W. Rep., 184. In McKenzie v. Harrison the court said the transaction was the same as if the lessee had paid each instalment in full, as called for by the lease, and the lessor had voluntarily given him back the difference. But we need not resort to any circuitous explanation. So long as the agreement has been performed, the statute of frauds is out of the way, and the case is like any other executed modification of an agreement. Schneider v. Lord, 62 Mich., 141, 28 N. W. Rep., 773. Hence, we think a parol agreement reducing for the future the rent stipulated in a written lease is binding after the amount provided for in the parol agreement has been paid and accepted in full during the whole term.

It is objected that the defendant pleaded an abandonment and surrender of the written lease, and the substitution of a new one at a less rent. Of course, making and accepting a new lease during the term of an existing one operates as an abandonment and surrender of the prior lease. Taylor, Landlord & Tenant, sec. 512. But in order that a parol agreement to reduce the rent reserved in a written lease may have such effect, there must be a neAv consideration as the tenant is already in possession, and entitled to possession, under tlie prior agreement. In the case at bar there probably would be sufficient ground for holding that there was such consideration. Where the lessee has not covenanted and is not bound to remain in possession for any purpose, continuing in possession at the request of the lessor may be consideration for an agreement to reduce the rent. Doherty v. Doe, supra; Hyman v. Jockey Club Wine, Liquor & Cigar Co., 9 Colo. App., 299, 48 Pac. Rep., 671; Ten Eyck v. Sleeper, 65 Minn., 413, 67 N. W. Rep., 1026; Copper v. Fretnoransky, 16 N. Y. Supp., 866. It is obvious that for purposes of insurance and for many other reasons, it may be very important for the landlord to keep the premises occupied by the tenant himself; and, though the tenant may be bound to pay rent, he may not be bound to keep possession, either personally or by others. Hence, if necessary, we should be inclined to uphold the judgment upon this ground. But the pleadings and the findings of the court are not very Avell adapted thereto. So long as the ansAver alleges a “new arrangement,” whereby $50 a month was to be and was accepted in full, and the court has found there Avas such an arrangement and that it was fully carried out, Ave think the judgment has ample foundation. It is true there is a finding that the representative of the lessor accepted such sum because of a statement of the lessee that he had a new lease providing therefor. But it is also found that there Avas no fraud, as the lessee referred to the reduction, AArhieh had been acted on by the lessor at all times, and, as Ave have seen, the effect was as if such neAv lease had been entered into. Jaffray v. Greenbaum, 64 Ia., 492, 20 N. W. Rep., 775; Hyman v. Jockey Club Wine, Liquor & Cigar Co., supra.

Exception is taken also to the refusal of the court to strike out a portion of a deposition offered by the defendant. The witness, in stating a conversation between the lessor and lessee, stated the effect thereof, what the parties did and agreed, instead of giving its terms and leaving the effect to be deduced therefrom. The question asked was proper, and the answer responsive. If the plaintiffs desired to know what transpired in more detail, or to test the statement as to the effect of the conversation, they should have cross-examined.

The following opinion on rehearing was filed on December 3, 1902:

Commissioner’s opinion, Department No. 2.

1. Trial to Court: Error. Where a cause is tried to the court without the intervention of a jury, the g-eneral rule is that error can not be predicated upon the rulings of the court by which testimony is received, because it is presumed that the court considered only proper evidence. 2. -: -. This rule always obtains where the record contains competent evidence upon every question necessary to sustain the findings and judgment. 3. Record: Pleading: Proof: Evidence: Variance. Record examined, and held that there was no material variance between the pleading' and proof, and that the evidence was sufficient to sustain the findings and judgment of the court.

We recommend that the judgment be affirmed.

Barnes and Oldham, 00., concur.

By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is

Affirmed.

6 L. R. A., 503, 16* Am. St. Rep., 793.

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slTbTa, 257, 17 Am. St. Kep., 638.