Hines v. Wilcox

• Decision Date: 04 February 1896
• Citation: 33 S.W. 914,96 Tenn. 148
• Parties: HINES v. WILCOX.
• Court: Tennessee Supreme Court

33 S.W. 914

96 Tenn. 148

HINES v. WILCOX.

Supreme Court of Tennessee.

February 4, 1896

Appeal from circuit court, Davidson county; J. W. Bonner, Judge.

Action by Mrs. Lucy S. Hines against James M. Wilcox, Jr. Judgment for the defendant, and plaintiff appeals. Reversed.

H Parks, E. A. Price, and J. W. Gaines, for appellant.

R. T Smith and R. McPhail Smith, for appellee.

WILKES J.

This is an action for damages for personal injuries sustained by the plaintiff while occupying the house of defendant, as his tenant. The cause was heard before the court and a jury, and there was a verdict for the defendant, and judgment against plaintiff for costs, and she has appealed and assigned errors.

The plaintiff, with several members of her family, and boarders in the house, was injured by the falling of a defective and unsafe back porch. There are two counts in the declaration the first alleging, in substance, that defendant contracted that the house should be put in safe and tenantable condition before the rental contract was made, and that at the time the contract was closed the defendant's agent represented and stated that it had been put in a safe and tenantable condition as had been previously promised and agreed. The second count alleges, in substance, that the house was in an unsafe and dangerous condition when plaintiff rented it from defendant, and that defendant and his agent knew of this fact and concealed it from her, and that it was not known to her. The pleas were, in effect, a general denial of the truth of the matters alleged, not guilty, and contributory negligence. There was what is termed a "rental contract," signed by the parties, in the words and figures following. "Nashville, Sept. 28, 1892. A. V. S. Lindsley, agent has this day rented to M. P. Hines and wife, Lucy S. Hines, the two-story dwelling house on the S.W. corner of Church and McLemore streets for one year from Oct. 1, 1892, to Oct. 1, 1893, for $50.00 per month, payable monthly in advance. To secure payment of said sum, said M. P. Hines and wife have this day executed twelve notes, payable to A. V. S. Lindsley, agent, falling due, one Oct. 1, 1892, and one on the first of each month thereafter, till the twelve notes are paid. M. P. Hines and wife further agree and bind themselves to keep said premises clean and in a sanitary condition, satisfactory to the city authorities. Should any of the above notes remain due and unpaid, A. V. S. Lindsley, agent, reserves the right to re-enter and take possession, or to enter suit for collection of all notes unpaid. A. V. S. Lindsley, agent, also reserves the right to re-enter and take possession of said premises should M. P. Hines and wife fail to keep said property in a good sanitary condition. [Signed] A. V. S. Lindsley, Agent, by J. T. Lindsley. M. P. Hines, L. S. Hines." During the rental year, M. P. Hines, the husband, died; and L. S. Hines, his widow, continued to occupy the premises under the same contract previously made with her and her husband, and the injuries occurred after his death. The case has been most ably and elaborately argued on both sides, and a vast array of authorities have been collected and commented upon. We can only notice the salient features which, must determine the decision of the case, leaving many others untouched.

The trial judge excluded from the jury all evidence offered by plaintiff to show that defendant made any promise or agreement to put the premises in good and safe condition before the rent contract was signed, and all evidence as to statements made that the premises had been put in safe and tenantable condition at the time and contemporaneous with its signing. This is assigned as error. In excluding the evidence, the court said it was done because: "(1) It goes to alter the terms of a written lease to plaintiff. (2) It attempts to introduce a warranty of the condition of the premises at the time of the demise, when no such warranty is contained in the lease. (3) Because the complaint made by plaintiff of the condition of the premises had no reference to the condition of the porch, or its insecurity, at or before the time the lease was executed; said complaints relating only to minor matters, such as the accumulation of dirt on the premises, the absence of glass in the windows, and the absence of grates from some of the fireplaces in the house. Witness has testified to nothing else. (4) The promise alleged to have been made by defendant's agent to put the place in repair, or the representations that the place had been put in repair, must be held to have reference only to the previous complaints made by the plaintiff." The plaintiff excepted to the action of the court. Taking up these grounds of the trial judge's action, we will examine them in the light of the facts of this case.

The general rule is that parol evidence is not admissible to contradict a written agreement whether simple or by deed. Bedford v. Flowers, 11 Humph. 242; Ellis v. Hamilton, 4 Sneed, 512; Bryan v. Hunt, Id. 544; Price v. Allen, 9 Humph. 702; McLean v. State, 8 Heisk. 22; Fields v. Stunston, 1 Cold. 40; Stewart v. Insurance Co., 9 Lea, 104; Weisinger v. Bank, 10 Lea, 330; Insurance Co. v. Mathews, 8 Lea, 508; Railroad Co. v. Gammon, 5 Sneed, 571; Kearly v. Duncan, 1 Head, 400. But this rule does not apply in cases where the parol evidence in no way contradicts or alters the terms of the written contract, but tends to establish an independent or collateral agreement not in conflict with it. Betts v. Demumbrune, Cooke, 48; Leinau v. Smart, 11 Humph. 308; Cobb v. Wallace, 5 Cold. 539; Lytle v. Bass, 7 Cold. 303; Stewart v. Insurance Co., 9 Lea. 104; Vanleer v. Fain, 6 Humph. 104; Ferguson v. Rafferty (Pa. Sup.) 6 Lawy. Rep. Ann. 33, notes (18 A. 484); Durkin v. Cobleigh (Mass.) 17 Lawy. Rep. Ann. 270, and notes (30 N.E. 474). Nor does it apply in cases where the original contract was verbal and entire, and a part only of it was reduced to writing. 1 Greenl. Ev. (15th Ed.) § 284a; 1 Starkie, Ev. 267; Vanleer v. Fain, 6 Humph. 104; Dick v. Martin, 7 Humph. 263; Mitchell v. Bank, 8 Humph. 216; Leinau v. Smart, 111 Humph. 308; Cobb v. O'Neal, 2 Sneed, 438; Cobb v. Wallace, 5 Cold. 539; Bryan v. Hunt, 4 Sneed, 543; Lytle v. Bass, 7 Cold. 303; Bissenger v. Guiteman, 6 Heisk. 277; Hicks v. Smith, 4 Lea, 464; Smith v. O'Donnell, 8 Lea, 468; Hawkins v. Lee, Id. 42; Breeden v. Grigg, 8 Baxt. 163; Waterbury v. Russell, Id. 162; Brady v. Isler, 9 Lea, 356; Barnard v. Iron Co., 85 Tenn. 139, 2 S.W. 21. Parol evidence is admissible as to collateral matters not varying the terms of the writing, such as fraud in the soundness of an article, when the written warranty extends only as to title (McFarlane v. Moore, 1 Overt. 174; Lytle v. Bass. 7 Cold. 303); or when fraudulent representations were made in negotiating the contract (Barnard v. Iron Co., 85 Tenn. 139, 2 S.W. 21); or when representations and statements are made as inducements to the contract, and form the basis or consideration of it (Waterbury v. Russell, 8 Baxt. 162; Hogg v. Cardwell, 4 Sneed, 157). In Betts v. Demumbrune, Cooke, 48, the written contract was for the rent of a tavern. It was permitted to be shown by parol that the landlord agreed to erect a kitchen on the ground; that this was an inducement to rent the tavern, and only part of the contract was in writing. In Vanleer v. Fain, 6 Humph. 104, it was held that, in a written contract for the hire of a slave, parol evidence could be introduced to show that one of the terms of the hiring was that the slave should not be removed out of the county. In Leinau v. Smart, 11 Humph. 380, there was a written contract for the sale of a tavern, and it was permitted to show by parol, as part of the same agreement, and an inducement to it, that the vendor would close up another tavern he owned in the same town. In Dick v. Martin, 7 Humph. 263, parol evidence was allowed to prove an agreement to waive demand and notice of negotiable paper, although made at the time of the indorsement, which was full and dated. In Mitchell v. Bank, 8 Humph. 216, it was permitted to be shown by parol that the cashier of a bank informed the directors that one of the makers had promised the indorser's name on the note, the evidence being treated as part of the res gestae. In Cobb v. O'Neal, 2 Sneed, 439, there was a written warranty of the soundness of a slave. It was permitted to show by parol that the vendee agreed to look to a third person, and not to the warrantor, in case of a breach, in consideration of an abatement in price. In Bryan v. Hunt, 4 Sneed, 543, it was held that the general rule excluding parol evidence has no application to agreements made subsequent to the execution of the written contract. In Cobb v. Wallace, 5 Cold. 539, there was a written contract for the hire of a coal barge. It was allowed to prove by parol that it was hired for one particular purpose and trip only, and the question whether the writing embraced the whole contract was for the jury. In Lytle v. Bass, 7 Cold. 303, a note was given for a sawmill. It was permitted to show, as a separate, collateral, substantive agreement, that the vendor warranted the sawmill. In Bissenger v. Guiteman, 6 Heisk. 277, it was held that it was competent to show by parol that, at the time a promissory note was executed, it was agreed it should be held for nothing, on the happening of a specific condition. In Hicks v. Smith, 4 Lea, 463, there was a mortgage, and it was permitted to show by parol that Thomas should have priority when it was satisfied, though the mortgage did not so provide. In Hawkins v. Lee, 8 Lea, 42, it was allowed to add terms to a written contract by parol, to the effect that plaintiff was to work at a particular place, and not remove his...