L. Colodny v. American Clothing Co., Inc

• Decision Date: 07 May 1935
• Citation: 178 A. 714,107 Vt. 321
• Parties: L. COLODNY v. AMERICAN CLOTHING CO., INC
• Court: Vermont Supreme Court

178 A. 714

107 Vt. 321

L. COLODNY v. AMERICAN CLOTHING CO., INC

Supreme Court of Vermont

May 7, 1935

February Term, 1935.

Contracts-Modification of Contract under Seal-Landlord and Tenant-Waiver-Option for Extension of Lease as Exercised by Holding Over-Effect of Failure To Object to Parol Evidence To Show Modification of Sealed Lease on Consideration of Exceptions To Findings as to Modification-Estoppel-Sealed Lease as Not Modified by Oral Agreement Still Executory.

1. An executory contract under seal cannot be modified by, or merged into, mere subsequent parol agreement, varying terms of its provisions, adding new terms, or interposing new element, although it can be modified by parol agreement which has been acted upon, but only to extent it has become executed.

2. Where lease of store by sealed instrument executed by both parties, which provided for yearly rental of $2,500 payable in monthly installments, and contained provision that lessee was to furnish heat and electric lights, was shortly after execution modified by parol agreement that lessor would heat premises for $500 per year additional rent, parties agreeing that increased rental was to continue during term of lease held that modification did not constitute waiver of covenant by party for whose benefit it was inserted, but that provision about heat was new element added to lease otherwise unchanged, except as to increase of rent by cost of heat.

3. Where lease provided for extension of term of lease as distinguished from renewal, and made term originally, not merely five years, but ten years, at option of lessee holding over of lessee after five-year period was sufficient exercise of such option, and when option was exercised lessee was in as of original term.

4. In ACTION OF CONTRACT for recovery of rent under written lease failure of defendant to object at trial to admission of parol evidence to show modification, of lease upon ground that lease was sealed instrument, held not to prevent consideration of exception to court's findings as to such modification and to judgment, since lease could not be modified by parol so far as agreement was executory.

5. Where there was no finding that lessor was led to do something to his prejudice, held that lessee under written lease was not estopped to claim that lease under seal could not be modified by parol agreement as to lessor supplying heat instead of lessee at specified increased rental.

6. Where parties to sealed lease of store providing that lessee should supply heat attempted by parol agreement to modify lease shortly after its execution to provide that lessor should supply heat at a specified increase in yearly rental and parties acted thereunder for some time and then lessee notified lessor that it intended to vacate premises on certain date, would not need any more heat in premises, and would only pay rent thereafter on basis set forth in original lease, held that, agreement for heat being still executory, original lease was not modified, nor merged or incorporated into, or reduced to, oral agreement.

ACTION OF CONTRACT for recovery of rent. Pleas, general issue and Statute of Frauds. Trial by court at the March Term, 1934, Orleans County, Jeffords, J., presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the case. Reversed and remanded.

Judgment reversed, and cause remanded. Let the defendant recover its costs in this Court.

Hubert S. Pierce for the defendant.

Searles & Graves for the plaintiff.

Present: POWERS, C. J., MOULTON, THOMPSON, and SHERBURNE, JJ., and BUTTLES, Supr. J.

OPINION

SHERBURNE

This is an action to recover a claimed unpaid balance for rent and one other item. Trial was by court. From the facts found it appears, that the plaintiff gave the defendant a lease, dated February 16, 1925, of a store in plaintiff's block in Newport for the term of five years, with the option given the defendant to continue the same for an additional five years if it so desired. This lease was executed by both parties on March 9, 1925, and is under seal. It provided for a yearly rental of $ 2,500 to be paid on the first of each month beginning March 1, 1925. It contains a provision that the defendant "is to furnish its own heat and electric lights."

"Within a very short time after the execution of this lease, either the same day of the execution or the day after, the plaintiff and the defendant through its president * * * entered into a verbal agreement to the effect that the plaintiff would heat the premises in question for $ 500 a year additional rent making a total rent of $ 3,000 a year instead of $ 2,500 as provided in the written lease. It was agreed between the parties that this increased rental was to continue during the term of the lease. "

"The defendant paid its rent by monthly checks of $ 250 each from the time it went into possession of the premises on or about February 16, 1925, up to the month of January, 1934. On January 8, 1934, it sent its check for $ 208.33 which was received by the plaintiff as part payment on the month's rent of $ 250 due on January 1st. On many of these monthly checks the word 'rent' appears. It was intended by both plaintiff and defendant that the original written lease should be merged or incorporated into the subsequent oral agreement and that the whole agreement in character should be reduced to the oral agreement then entered into and this intention was adopted, acted upon and carried out by both parties for a period of nearly nine years."

"On February 14, 1929, the defendant notified the plaintiff of its intention to...