Perry v. Farmer, Civil 3679
| Decision Date | 17 February 1936 |
| Docket Number | Civil 3679 |
| Citation | 54 P.2d 999,47 Ariz. 185 |
| Parties | F. E. PERRY, Appellant, v. RAYMOND R. FARMER, Appellee |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Yuma. M. T. Phelps, Judge. Judgment reversed and case remanded with instructions.
Mr. J Fred Hoover, for Appellant.
Mr.Hugo B. Farmer, for Appellee.
This is an appeal from a judgment of the superior court of Yuma county against F. E. Perry, hereinafter called defendant, and in favor of Raymond R. Farmer, hereinafter called plaintiff for the sum of $210, rent due from defendant to plaintiff and enjoining defendant from removing from the premises of plaintiff certain gasoline tanks, electric pumps and an air compressor until the payment of said judgment.
The complaint alleges that between January, 1931, and January, 1934, defendant was in possession of certain premises belonging to plaintiff, under a written lease by the terms of which defendant was to pay a fixed rental, and that upon the termination of the lease, if the rent had been fully paid, he might remove from the premises any equipment that he had placed thereon. It then states that the defendant had paid all of the rent due except the sum of $215, but had wholly neglected and failed to pay such sum, notwithstanding which he was about to remove from the premises certain tanks, pumps and an air compressor which he had placed thereon during the term of the lease.
Defendant answered, admitting the lease set up by plaintiff and his possession thereunder, and that he had not paid the full amount of rent stipulated therein, but contended that by a later oral agreement between the parties the rent had been reduced, and that he had paid to plaintiff the full amount due under such oral agreement, and that plaintiff had accepted the same during the full period of the lease, and that, after the lease had terminated, with the rent fully paid according to the terms of the modifying oral agreement, defendant did desire to remove from the premises the equipment which he had placed thereon, but was prevented by plaintiff from so doing.
The case came on for trial before the court sitting without a jury. The lease was introduced in evidence, and plaintiff testified that defendant had not paid all of the rent due thereunder; there being $215 still due. Counsel for defendant then attempted to cross-examine plaintiff in regard to the alleged reduction of rent, whereupon objection was made; it being contended by plaintiff that an agreement to reduce the rent stipulated for in a written lease was not valid unless there was some new consideration therefor. Counsel for defendant did not question this general rule, but urged that, inasmuch as a new agreement had been made and the rent, according to its terms, had been paid by the tenant and accepted by the landlord in full satisfaction of all rent due under the lease, it then became an executed instead of an executory contract, no consideration was necessary to support it, and the landlord could not recover for the difference between the rent which had been paid under the oral agreement and that provided for by the original lease. The court, after considerable discussion, said:
Counsel for defendant then asked permission to make a trial amendment, showing that the rent was reduced by mutual agreement and that the contract was executed. The court denied the amendment on the ground that, unless it showed a valid consideration for the new agreement, it would be immaterial, and sustained objections made to any further questions in regard to the alleged agreement for a reduction of the rent and payment thereunder, and rendered judgment as above set forth.
There can be no doubt that the general rule is that a person is under no legal obligation to perform a gratuitous promise and a new agreement supplementing or modifying an executory contract is, in legal contemplation, an independent contract requiring for its validity all the elements of a contract including a proper consideration. Nor can this consideration be something which a party is already bound to do. Pleasant et al. v. Arizona Storage & Distributing Co., 34 Ariz. 68, 267 P. 794. Following this rule, it is...
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