Page:Harvard Law Review Volume 1.djvu/308

 also by the defendant’s reply, when he was in turn called upon soon afterwards to perform his part. The written conveyance and lease appear then to have been made, not for the purpose of reducing the previous oral agreements to writing, but in order to partly excuse those agreements.

The defendant, nevertheless, contends that the plaintiff, although he has performed his part of the oral agreement, cannot maintain this action against the defendant for refusing to perform it on his side. In sustaining this contention, the Court below adopted the defendant’s request for a ruling, and held that “no verbal agreement between the parties to a written contract and made before or at the time of the execution of such contract are admissible to vary its terms or affect its construction.” This ruling, and the general principle which it invokes, seem to be inapplicable to the facts of this case. The plaintiff is not seeking to fix upon the writings here any disputed interpretation or construction; no question of that sort arises. Nor is he seeking to vary or add to the terms of the writings, in the sense of reading into them and making operative as if it were a part of them, that which is not therein expressed. The bill of exceptions does not find any covenant or agreement in either the deed or lease; and we cannot assume that there was any other contract in either of them than such as is implied by law from the ordinary terms of such instruments. The oral agreements are in no way inconsistent with anything implied or expressed in the writings. They leave them to their full operation, and only set up other and distinct matter relating to the property granted and conveyed, in a case where it plainly appears that the parties did not intend the writings to be the full expression of all their previous contracts relating to the property in question. There is no authority for the doctrine that a written agreement is exclusively taken to merge all previous and contemporary oral contracts relating to the same subject-matter, even such as are not inconsistent with the writing; while in general this will be presumed as regards all such terms as would naturally and properly be inserted in the writings (and clear evidence will be required of the contrary), yet it is open to inquiry whether the fact be so or not. The question is one for the Court; and in determining it, there is no rule which limits the evidence to the contents of the writing itself. The doctrine, as regards this point, of such cases as Naumberg v. Young, 15 Vroom, 331, and Hei v. Hiller, 53 Wis. 415, is not well sustained. The point is to be determined in the same manner as the questions whether the parties really have reduced the contract to writing or not, and whether they have adopted the writing as binding, — matters upon which the mere signature is never conclusive and all evidence ordinarily receivable is admissible. Buzzell v. Willard, 44 Vt. 44; Jones v. Hardesty, 10 Gill & Johnson, 404, 416; Ludeke v. Sutherland, 87 Ill. 481; Linau v. Smart, 11 Humph. 308; Preble v. Baldwin, 6 Cush. 549; Chapin v. Dobson, 78 N.Y. 74; Morgan v. Griffith, L.R. 6 Ex. 70; McCormick v. Cheevers, 124 Mass. 262; Graffam v. Pierce, 143 Mass. 386. The case of Eighmie v. Taylor, 98 N.Y. 288, does not lay down a different doctrine. In Angell v. Duke, 32 L.T. Rep. N.S. 320, the case went upon the point of fact that the parties intended the lease to contain their full agreement.