Graffam v. Pierce

9 N.E. 819, 143 Mass. 386, 1887 Mass. LEXIS 310

• Court: Massachusetts Supreme Judicial Court
• Decided: January 10, 1887
• Status: Published

Opinion

Field, J.

The original agreement was oral. So far as it was an agreement for the sale of “ lands, tenements, or hereditaments, or of any interest in or concerning them,” it was within the statute of frauds, but the statute of frauds has not been pleaded, and the agreement has been executed by both parties as to all matters within the statute. “ If some of the stipulations in a contract are within the statute and others are not, and those which are within it have been performed, an action lies upon the other stipulations, if they are separate.” Trowbridge v. Wetherbee, 11 Allen, 361. Page v. Monks, 5 Gray, 492.

The written papers executed by the parties were in performance of the oral contract, and there is nothing in them inconsistent with the alleged promise of the defendant to put a hard-pine floor in the hall whenever 'the plaintiff should request it. This is a promise in its nature separable from the rest of the contract, and a promise to do something after the execution of the lease, and it relates to a subject distinct from anything contained in the lease. Page v. Monks, ubi supra. As the original contract was oral, the rule that no oral evidence of prior or contemporaneous agreements can be received to add to or vary the terms of a written contract, has not its usual application. But as the performance of the oral contract consisted in part in the delivery of written contracts, if these contracts contained stipulations relating to the subject of the alleged promise, no prior or contemporaneous oral promise inconsistent with their terms could be received in evidence; nor could evidence of any prior or contemporaneous oral promise be received, if the written contracts delivered appeared to contain all the engagements of the parties on the subject, or to have been intended as a complete statement or performance of the whole contract. The case at bar, however, is clearly within the cases where oral evidence of a collateral separate agreement has been received. Page v. Monks, ubi supra. Rennell v. Kimball, 5 Allen, 356, 364. Carr v. Dooley, 119 Mass. 294. McCormick v. Cheevers, 124 Mass. 262. Chapin v. Dobson, 78 N. Y. 74. Eighmie v. Taylor, 98 N. Y. 288. Lindley v. Lacey, 17 C. B. (N. S.) 578. Morgan v. Griffith, L. R. 6 Ex. 70. Erskine v. Adeane, L. R. 8 Ch. 756, 765.

Exceptions sustained.