Freedman v. Gordon

• Decision Date: 26 February 1915
• Citation: 107 N.E. 982,220 Mass. 324
• Parties: FREEDMAN v. GORDON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

220 Mass. 324

107 N.E. 982

FREEDMAN v. GORDON.

Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1915

COUNSEL

David Stoneman, Alexander I. Stoneman, Alexander G. Gould, all of Boston, for plaintiff.

Samuel Sigilman, of Boston, for defendant.

OPINION

LORING J.

The plaintiff and the defendant entered into a written agreement by which the plaintiff agreed to erect a wooden building to be occupied by the defendant as his tenant for a term of five years, at a rent of $100 a month.While the building was in process of erection the defendant asked the plaintiff by word of mouth to construct it of brick in place of wood.This the plaintiff agreed to do on the defendant's agreeing to pay an additional rent at the rate of $500 a year.The building was thereafter constructed of brick.The defendant entered into occupation of it, but refused to pay the additional rent agreed upon by word of mouth.This action was brought to recover the additional rent so agreed upon, for a period of 10 months next after the defendant went into occupation.The defendant set up in defense that the contract sued on was one not to be performed within a year, within clause 5 of Rev Laws, c. 74, § 1(which is in substance the same as section 4 of the original statute of frauds, 29 Car.II, c. 3), and asked the judge to give the three rulings set forth in the note.^[1] This the judge refused to do, and the defendant took an exception.He also excepted to the admission in evidence of the original written agreement and lease.

Apart from the doctrine of substituted performance put forward in Cummings v. Arnold, 3 Metc. 486, 37 Am. Dec. 155, these exceptions must be overruled.It was competent for the parties, by the subsequent oral agreement, to modify, change or annul the written agreement.King v. Faist,161 Mass. 449, 456, 37 N.E. 456, and cases there cited.If the defendant had refused to enter into possession of the brick building when it was completed (apart from the doctrine of Cummings v. Arnold), the statute of frauds would have been a defense.White v. Wieland,109 Mass. 291, 292;Miles v. Janvrin,200 Mass. 514, 517, 86 N.E. 785;Flanagan v. Welch,107 N.E. 979.But when the defendant entered into possession under the written contract modified by the subsequent oral agreement he became a tenant at will by force of Rev. Laws, c. 127, § 3, which is in substance the same as section 1 of the original statute of frauds (29 Car. II, c. 3), although enacted here by an early colonial statute.SeeCol. Law, p. 32, § 1;Ellis v. Paige, 1 Pick. 43;Kelly v. Waite,12 Metc. 300.By force of that act the written contract modified by the subsequent oral agreement became a tenancy at will and ceased to be a contract not to be performed within one year from the making thereof within Rev. Laws, c. 74, § 1, cl. 5.In case a tenant enters under an oral agreement and becomes a tenant at will, the terms of the oral agreement of lease are binding upon the parties and will be enforced by the court.See in this connection Miles v. Janvrin,200 Mass. 514, 518, 86 N.E. 785;Flanagan v. Welch, supra.

The written agreement was admissible in evidence as one of the steps which made out the defendant's liability to the plaintiff in this case.

The result is the same if the doctrine of substituted performance put forward in Cummings v. Arnold, ubisupra, applies to the subsequent agreement in the case at bar and enables the plaintiff to recover the increase in the rent thereby stipulated for.As to that doctrine seeRockwood v Walcott, 3 Allen, 458;Lerned v. Wannemacher, 9 Allen, 412;Whittier v. Dana,10 Allen, 326;Hurlburt v. Fitzpatrick,176 Mass. 287, 57 N.E. 464;Wiessner v. Ayer,176 Mass. 425, 428, 57 N.E. 672;Browne, Statute of Frauds, §§ 409-428;Williston on Sales, § 121;Langdell, Select Cases on Sales, pp. 1033-1034.It is not necessary to decide upon the right of the plaintiff to...