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. Thus an oral contract to repair a house leased by a written lease,1 or to ditch the farm leased,2 or to repair a levee,3 or not to build within a certain distance of a rented building.4 A written lease in a contract whereby the lessee agrees to purchase electricity from the lessor, renders inadmissible evidence of a contemporaneous oral agreement to the effect that the lessee should not operate an engine upon the leased realty,5 are so closely connected with a written lease that they can not 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,6 or to destroy rabbits which were overrunning the farm,7 or to erect a kitchen on the property leased,8 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.9 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.10 A conveyance of a right of way is held to render inadmissible extrinsic evidence of an oral agreement for the employment of the grantor as a part of the consideration of such convey anee.11 Under a written contract for the sale of realty, extrinsic evidence is inadmissible to show an oral agreement that certain restrictions should be inserted in other conveyances of adjoining land.12 The fact that such restrictions appear in the contract of sale with reference to the specific tract of realty which is sold,13 or the fact that the purchaser was shown a typewritten copy of such prospective restrictions and that the contract of agency provided for "restrictions as to offensive occupations," 14 does not authorize the admission of extrinsic evidence. Accordingly, no action against the grantor can be maintained because of his breach of his oral agreement to insert restrictions which prevent the sale of liquor upon the entire tract, a part of which is sold by such contract of sale.15 An oral contract to repair has been held enforceable though a written contract for the sale of the property had been entered into.16 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.17 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 be unenforceable.18 A written contract was entered into to compromise a judgment for seventeen thousand dollars upon payment of five thousand dollars, 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.19 A prior oral agreement to the effect that payment of rent may be made by giving a bill payable in a certain specified time, can not be shown as a collateral consistent contract if subsequently a written lease was entered into which provided for payment at certain specified times and which contained no reference to payment by such bill.20 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.21 Under a written contract for grading, which purports on its face to be complete and to provide for the payment of specified amounts for each different class of excavation, a prior oral agreement to the effect that the classification of the engineer of one of the parties as to such excavation should be final can not be shown.22 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, can not be enforced.23 An oral warranty can not be shown as collateral to a written contract of sale which purports on its face to be complete, which does not contain an express covenant of warranty and from which an implied warranty can not be inferred because of the language of the parties or the circumstances of the case.24 Under a written contract of sale, an oral agreement to keep the property sold in repair for a year, can not be shown on the theory that it is a collateral consistent contract.25 Under a written contract by which a contractor who agrees to construct certain paving agrees to buy rock from the adversary party, an oral contract to the effect that such adversary party agrees to furnish all the rock which is necessary can not be shown.26 Under a written contract of employment an oral contract by which such employe agreed to sell a specified amount of goods can not be shown.27 Under a contract of insurance, an oral provision for arbitration can not be shown.28 So under a written contract of adoption, complete on its face, an oral contract to devise or bequeath property to the child adopted can not be shown.29 A promise that a corporation will maintain a surplus out of payments made to it in excess of the par value of its capital stock, is not collateral to a written contract of subscription which is a part of the same transaction, and oral evidence of such promise is therefore inadmissible.30
1 Connecticut. Gulliver v. Fowler, 64 Conn. 556. 30 Atl 852.
Iowa. Lerch v. Times Co., 91 Ia. 750, 60 N. W. 611.
Indiana. Roehrs v. Timmons, 28 Ind. App. 578, 63 N. E. 481.
Massachusetts. Mills v. Swanton, 222 Mass. 557, 111 N. E. 384.
Michigan. Graahaw v. Wilson, 123 Mich. 364, 82 N. W. 73.
Oklahoma. Reed v. Moore, 54 Okla 354, 154 Pac. 348.
Ohio. Howard v. Thomas, 12 0. S. 201.
2Diven v. Johnson, 117 Ind. 512, 3 L. R. A. 308, 20 N. E. 428.
3 Garner v. Murphy, 131 Ark. 594, 199 8. W. 902.
4 Haycock v. Johnston, 81 Minn. 49, 83 N. W. 494, 1118.
5 Phoenix Pad Mfg. Co. v. Roth, 127 Md. 540, 96 Atl. 762.
6 Hines v. Wilcox, 96 Tenn. 148, 54 Am. St. Rep. 823, 34 L. R. A. 824, 33 S. W. 914; Webber v. Loranger, - N-H. -,103 Atl. 1050.
7 Erskine v. Adeane, L. R. 8 Ch. App. 756; Morgan v. Griffith, L. R. 6 Ex. 70.
8 Betts v. Demumbrane, Cooke (Tenn.) 39.
9Durkin v. Cobleigh, 156 Mass. 10S, 32 Am. St. Rep. 436, 17 L. R. A. 270, 30 N. E. 474.
10Lebus v. Boston, 107 Ky. 98, 47 L. R. A. 79, 51 S. W. 609, 52 S. W. 956.
11 Ashley, Drew & N. Ry. Co. v. Cunningham, 129 Ark. 346, 196 S. W. 798.
12 Avers v. Southern Pacific Railroad Co., 173 Cal. 74, L. R. A. 1917F, 919, 159 Pac. 144; Roberts v. Lombard, 78 Or. 100, 152 Pac. 499; Caveny v. Curtis, 257 Pa. St. 575, 101 Atl. 853.
13 Roberts v. Lombard, 78 Or. 100, 152 Pac. 499.
14 Caveny v. Curtis, 257 Pa. St. 575, 101 Atl. 853.
15 Avers v. Southern Pacific Railroad Co., 173 Cal. 74, L. R. A. 1917F, 949, 159 Pac. 144.
16 Manning v. Jones, Busb. (N. Car.) 368.
17 Martin v. R. R., 48 W. Va. 542, 37 S. E. 563.
18McEnery v. McEnery, 110 Ia. 718, 80 N. W. 1071.
19 McTague v. Finnegan, 54 N. J. Eq. 454, 35 Atl. 542.
20Henderson v. Arthur , 1 K. B. 10.
See Sec. 2196.
21 Sutton v. Kentucky Lumber Co. (Ky.), 44 S. W. 86.
22Sund v. Flagg & Standifer Co., 86 Or. 289, 168 Pac. 300.
23McAleer v. United States, 150 U. S. 424, 38 L. ed. 1130.
24 Hamilton Iron & Steel Co. v.
Groveland Mining Co., 233 Fed. 388, 147 C. C. A. 324: Electric Storage Battery Co. v. Waterloo C. F. & N. R. Co., 138 Ia. 360, 10 L. R. A. (N.S.) 1183, 116 N.W. 144.
See Sec. 2197.
25MacAlman v. Gleason, 228 Mans. 454, 117 N. E. 705.
26 Elliott Contracting Co. v. Portland, 88 Or. 150, 171 Pac. 760.