This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Illustrations of oral contracts offered in evidence as collateral to a written contract, but held unenforceable as being really terms of the written contract are by no means uncommon.
5Angell v. Duke, L. R. 10 Q. B. 174.
6Angell v. Duke, 32 L. T. 320.
7 Slaughter v. Smither, 97 Va. 202; 33 S. E. 544.
8 Drew v. Wiswall, 183 Mass. 554; 67 N. E. 6G6.
9 Welz v. Rhodius, 87 Ind. 1; 44 Am. Rep. 747; Leineau v. Smart, 11 Humph. (Tenn.) 308.
Thus an oral contract to repair a house leased by a written lease,1 or to ditch the farm leased,2 or not to build within a certain distance of a rented building,3 are so closely connected with a written lease that they cannot be enforced. The courts are not harmonious on these questions, however. Thus in some jurisdictions an oral contract whereby the lessor agrees to put the premises into safe condition or to make certain repairs,4 or to destroy rabbits which were overrunning the farm,5 or to erect a kitchen on the property leased,6 has in each case been held enforceable though a written lease was given. So a contract to have the front street graded and water-mains put in has been held so far collateral to a deed for the land as to be proved by parol.7 So an oral contract that the grantor should not have a right of way over the land conveyed is so far collateral to a deed that it may be used to rebut an implied right of way from necessity.8 So an oral contract to repair has been held enforceable though a written contract for the sale of the property had been entered into.9 Under an oral contract between A and a railroad corporation, whereby the railroad was to construct two convenient and necessary crossings over its tracks on A's land, an oral agreement between A and the railroad as to the kind of crossing to be constructed, was unenforceable.10 An oral contract was made for distributing the estate of one of the parties among the other parties, his children. Subsequently, two branches of this contract were put in writing, and the written contract appeared upon its face to be complete. The remaining oral terms were held to he unenforceable.11 A written contract was entered into to compromise a judgment for $17,000 upon payment of $5,000, the consideration for the reduction being expressed in the written contract to be one dollar "and for the further consideration of the relation of myself and family to P. Rehill and Elizabeth Rehill his wife," Rehill being the judgment debtor. A collateral oral contract that in consideration of such settlement the judgment creditor's wife, who had been brought up by the Rehills, should be their heir and devisee at their death, was unenforceable.12 Where A had made a contract with B to cut certain timber growing on B's land, and to haul it to a certain stream at a distance from B's land, A could not show an oral agreement whereby B was to furnish a right of way for a tramway from his land to the stream.13 Thus, where an inventor makes a written assignment of his patents to the government, in consideration of one dollar and other considerations, a collateral oral contract that the assignor shall be employed by the government as long as his invention is used, and that the government shall pay a reasonable compensation for the use of his patent, cannot be enforced.14 So under a written contract for the sale of a business an oral contract not to compete cannot be shown.16 So under a contract of insurance, an oral provision for arbitration cannot be shown.16 So under a written contract of adoption, complete on its face, an oral contract to devise or bequeath property to the child adopted cannot be shown.17
1 Gulliver v. Fowler, 64 Conn. 556; 30 Atl. 852; Roehrs v. Tim-mons, 28 Ind. App. 578; 63 N. E. 481; Lerch v. Times Co., 91 la. 750; 60 N. W. 611; Grashaw v. Wilson, 123 Mich. 364; 82 N. W. 73; Howard v. Thomas, 12 O. S. 201.
2Diven v. Johnson, 117 Ind. 512; 3 L. R. A. 308; 20 N. E. 428.
3 Haycock v. Johnston, 81 Minn. 49; 83 N. W. 494, 1118.
4Hines v. Wilcox, 96 Tenn. 148; 54 Am. St. Rep. 823; 34 L. R. A. 824; 33 S. W. 914.
5Erskine v. Adeane, L. R. 8 Ch.
App. 756; Morgan v. Griffith, L. R. 6 Ex. 70.
6 Betts v. Demumbrane, Cooke (Tenn.) 39.
7 Durkin v. Cobleigh, 156 Mass. 108; 32 Am. St. Rep. 436; 17 L. R. A. 270; 30 N. E. 474.
8 Lebus v. Boston, 107 Ky. 98; 47 L. R. A. 79; 51 S. W. 609; 52 S. W. 956.
9 Manning v. Jones, Busb. (N.C.) 368.
10 Martin v. R. R., 48 W. Va. 542; 37 S. E. 563.