McLean v. Nicol

• Decision Date: 24 April 1890
• Parties: MCLEAN v NICOL.
• Court: Minnesota Supreme Court

43 Minn. 169

45 N.W. 15

MCLEANvNICOL.

Supreme Court of Minnesota.

April 24, 1890.

(Syllabus by the Court.)

Where there was a written lease of premises, held, that proof of a prior oral agreement to introduce gas and water into the premises during the term is not competent.

Appeal from municipal court of Duluth; MORRIS, Judge.

Walter Ayers, for appellant.

Tear & Davies, for respondent.

GILFILLAN, C. J.

This was an action for the rent of certain premises in Duluth for the months of March and April, 1889, under a written lease of the premises for a term commencing June 15, 1888, and ending May 1, 1889. The defendant occupied the premises under the lease from the commencement of the term until the last day of February, 1889, when he left them. As a reason for vacating the premises, and as the basis for his claim that no rent accrued for the months of March and April, defendants alleges that prior to the execution of the lease it was verbally agreed between him and plaintiff that the latter should lease to him the premises from June 15, 1888, to May 1, 1890, and at once proceed to put the gas and water service into the premises, and make connection with the gas and water mains as soon as they should be completely laid in the street opposite, and the water turned in, and should give defendant a written lease of the premises, the rent to be $45 per month until the gas and water service should be put in the premises, and $50 per month thereafter. The written lease provides that the defendant shall pay rent at the rate of $45 per month until the gas and water service shall be introduced into the premises, and after that time at the rate of $50 per month; but there is no express covenant by the lessor to introduce the gas and water. The court below, against the objection of the plaintiff, admitted testimony as to the oral agreement, and the jury found for the defendant.

The theory upon which the court, doubtless, admitted the evidence, and upon which the respondent seeks to defend here such ruling, is that the case comes within those where a written agreement given in part performance of an oral agreement which includes the subject-matter of the written agreement, and other matters not intended to be embraced in it, is held not to exclude oral testimony as to the agreement in respect to such other matters. Had the alleged agreement to bring in the gas and water been in the written lease, a breach of it would not have terminated the lease, nor...