Dissenting. — I am unable to concur in the opinion of the majority of the court. The new matter pleaded in the answer properly belongs to that character of anterior and contemporaneous agreements and promises on the part of the landlord, which show a collateral promise, or express assurance by the landlord to have done a certain other thing,, not named in the writing, but collateral to the- thing demised, whereby the tenant is induced to execute the written contract without the inducing matter being incorporated in it, and without which assurance and promise the tenant would not have signed the lease. 1 Such a representation, unfulfilled on the part of the landlord, would give him an unconscionable advantage, which no court ought to suffer.
I concede that the case of Pearson v. Carter, if viewed solqly in the light of the mere words employed *359in it, regardless of the state of the pleadings, and the state of the facts, gives strong support to the position of the majority. It is to be observed that in none of the cases decided by our Supreme Court, touching this question, was the distinct defence here interposed set up ; but the defence relied upon was merely that a part of the contract was omitted from the writing; and the thing omitted was either a condition of the contract, or appurtenant to the thing demised ; while here the thing omitted from the contract was collateral, essentially, to the thing demised, and the tenant was induced to so omit it from the writing upon the express assurance of the landlord that it was not necessary to be inserted, as it would be done without it. The railroad switch in this case was independent of the house let, was not appurtenant thereto. The contract respecting the lease of the house was complete within itself. This is not to make that contract conditional, as in the case of Lane v. Price, 5 Mo. 110 ; nor to add any terms thereto inconsistent with the written stipulations, or contradictory of them. It is further pleaded as a fraudulent assurance, whereby defendant was deceived into doing that which he would not have done but for the deception; and the fraud is to be found in the act of the landlord repudiating his representation after he has thus inveigled the tenant into the writing. I hold that the decided weight of authority is, that it is the province of the courts of equity and law to relieve the tenant against such wrong and fraud. And if our court holds the contrary, it is singular in its protection of fraud, deceit, and injustice.
In Morgan v. Griffith, 6 L. R. (Crt. of Exch.) 70, the tenant declined to sign the lease for á farm on account of the land being overrun by rabbits. The landlord declined to put in the lease a stipulation binding him to destroy the rabbits; but verbally promised the lessee that he would destroy them. Thereupon the tenant executed the written lease. The landlord, failing to keep the promise, was held liable to an action for damages. The court said: “The verbal agreement *360was entirely collateral to the lease, and was founded on a good consideration. The plaintiff, unless the promise to destroy the rabbits had been given, would not have signed the lease, and a court of equity would not have compelled him to do so, or only on the terms of the defendant performing his undertaking. * * * The verbal agreement, although it does not affect the mode of enjoyment of the land demised, is, I think, purely collateral to the lease. It was on the basis of its being performed that the lease was signed by the plaintiff, and it does not appear to me to contain any terms which conflict with the written contract.”
In the later case of Erskine v. Adeane, 8 L. R. (Ch. App. Cases) 756, a farmer, being in negotiation for a lease of a farm, declined to take it on account of the quantity of game on it. The lessor promised that he would kill down the game, and not let the shooting; but refused to insert this promise in the lease. Upon this verbal assurance the tenant signed the lease. Action for damages predicated of the verbal promise. Sir James, L. J., observed that he was unable to distinguish this case, on principle, from that of Morgan v. Griffith, supra. Sir Gr. Mellish, L. J., said: “No doubt, asa rule of law, if parties enter into negotiations affecting the terms of a bargain, and afterwards reduce it to writing, verbal evidence will not be permitted to introduce additional terms into the agreement; but, nevertheless, what is called a collateral agreement for a lease or for any other deed under seal, may be made in consideration of one of the parties executing that deed, unless, of course, the stipulation contradicts the terms of the deed itself. I quite agree that an agreement of this kind is to be rather closely watched, and that we ■should not admit it without seeing clearly that it is substantially proved, etc. * * * When it has been proved that Mr. Bennett, having found a quantity of game upon the farm, said that it was impossible that he could take it with that quantity of game on it, when * * * it is quite plain that Mr. Adeane said that Mr. *361Bennett need not be afraid of that, etc.; and when the lease was executed on the faith of that agreement, and upon these representations so made, it would be contrary. to the ordinary rules of justice if the tenant afterwards have no remedy. * * * As to the 'amount of damages, that is a matter to be inquired into; all we have to say now is, that this is an agreement that is binding in point of law, and assuming that there has been damage sustained, that Mr. Bennett is entitled to be paid for it out of Mr. Adeane’s estate.”
This doctrine is emphasized in Coal Co. v. McShain, 75 Pa. St. 238. The written agreement stipulated for the transportation of ten thousand tons of coal, at such time as desired, at $1.30 per ton. This was the written contract. On the trial the defendant sought to prove that the verbal agreement was, that McShain should furnish this coal before a certain date, the first of October, 1868 ; that when the written memorandum was pre-sented by the company to McShain to sign, he called attention to the fact that it omitted the agreement and understanding as to the time within which the coal was to be furnished, there being a great advantage to the shipper as to the right to deliver it within that time. The plaintiff thereat remarked: “Of course, that is understood;” thereupon McShain, with that understanding and upon that assurance, signed the paper. The court say: “ It is certainly permissible to give evidence of a verbal promise made by one of the parties, at the time of making a written contract, where such promise was used as an inducement to obtain the execution thereof (citing Campbell v. McCleneshan, 7 S. & B. 171). This rule,” say the court, “is put upon the ground that the attempt afterwards to take advantage of the omission from the contract, of such promise, is a fraud upon the party who was induced to execute it upon such promise, and hence he will be permitted to show the truth of the matter. * * * To say that this (written contract) might be enforced without regard to the express parol stipulation, under which it was signed, *362•would, be to disregard long and well-settled legal principies, as well as the plainest demands of common honesty.”
And in Shurghert v. Moore, 78 Pa. St. 464, it was held admissible, in an action by a landlord for breach of the tenant’s contract of lease reduced to writing, for the tenant to prove that he was induced to sign the instrument of writing by reason of the landlord’s verbal promise that he would build a barn on the farm before harvest.
This rule is recognized in California. In Murray v. Dake, 46 Cal. 644, the plaintiff leased of defendant a storehouse. Contract in writing, which called for “all that certain brick building situate, etc., together with the lot on which the same stands, and the rear yard to the depth of seventy feet.” The building then had but one story. During the term of this lease the landlord added 'a second story to this building, and made an outside entrance to the same. Refusing possession of this second story to the lessee, the latter brought ejectment therefor. The defendant, at the trial, against the objection of the plaintiff, was permitted to prove that, during the negotiations for the lease, it was understood that only the building as it then was, was to be embraced in the lease ; that defendant was to have the right to erect and use the second story ; that one of the lessees drew up, or caused to be drawn up, the written lease, and when it was presented to the lessor for his signature he objected to signing it unless it contained the agreement about the second story. He was answered by the lessees that this would make no difference whether or not this reservation was made in the lease, as it was so understood, and defendant might erect the second story ; that upon these assurances the defendant was induced to sign the contract.
The court held the proof admissible, placing its opinion upon the broad equitable ground, that “to permit the plaintiff to avail himself of this lease, in violation of his express agreement,, to recover the prop*363erty in controversy, would be to uphold and sanction fraud and bad faith;” quoting from Coger’s Ex'r v. McGee, 2 Bibb, 321: “For a party either to produce a mistake, or prevent it from being rectified, under the declaration that he would observe the understanding of the parties as verbally expressed and requested to be inserted in the writing, and afterwards attempt an advantage from its omission in the writing, is fraudulent, and ought to be relieved against.” Also, from Parks v. Chadwick, 8 Watts & Serg. 96: “It is as much a fraud to obtain a paper for -one purpose, and use it for a different and unfair purpose, as to obtain it by fraudulent statements.” So it is said in Renshaw v. Gans, 7 Barr, 117: “All the cases show that to pave the way for the reception of oral declarations, it is not necessary to prove a party was actuated by a fraudulent intention at the time of the execution of the writing. His original object may have been perfectly honest and upright: but if, to procure an unfair advantage to himself, he subsequently deny the parol qualifications of the written contract, it is such a fraud as will, under the rules, operate to let in evidence of the real intent and final conclusion of the contractors.” To the same purport are the cases of Taylor v. Gilmen, 25 Vt. 412; Bonney v. Morrell, 57 Me. 368; Bashor v. Forbes, 36 Md. 154.
The observations of Mr. Justice Miller, in Ins. Co. v. Wilkinson, 13 Wall. 231, 232, commend themselves to my approval. After paying the highest tribute of praise to the general rule invoked by the respondent in this case, he observes : “ But experience has shown that in reference to these very matters the rule is not perfect. * * * A rule of evidence adopted by the courts as a protection against fraud and false swearing, would, as was said in regard to the analogous rule known as the statute of frauds, become the instrument of the very fraud it was intended to prevent, if there did not exist some authority to correct the universality of its application. It is upon this principle that courts of equity proceed in giving relief ;. *364and though the courts, in a common-law action, may be more • circumscribed in the freedom with which they inquire into the origin of written agreements, such an inquiry is not always forbidden by the mere fact that ,the party’s name has been signed to the writing offered in evidence against him. * * * The principle is, that, where one party has, by his representations, or his conduct, induced the other party to a transaction to give him an advantage which it would be against equity and good conscience to assert, he would not, in a court of justice, be permitted to avail himself of that advantage. And although the cases to which the principle is to be applied are not as well settled as we could wish, the general doctrine is well understood, and is applied as well by the courts of law as equity, where the technical advantage thus obtained is set up and relied on to defeat the ends of justice or establish* a dishonest claim.”
The exception herein indicated to the general rule of the exclusive operation of the written contract, is recognized by Wharton on Evidence (vol. 2, secs. 928, 929, 1331). And it is also clearly recognized by our Supreme Court, in the recent case of Brown v. Bowen, 90 Mo. 189, 190, in which Judge Sherwood distinctly says: “ The rule which prohibits the introduction of' parol contemporaneous evidence does not-apply * * * where a distinct ■collateral contemporaneous agreement, independent of, and not varying, the written agreement, is offered in evidence, though it relates to the same subject-matter.” And in support of this proposition, he cites the cases of Bonney v. Morrill, 57 Me. 368, and Bashor v. Forbes 36 Md. 154, which on examination will be found to maintain the doctrine of the English and American cases cited heretofore. If this case does not support the distinction I have attempted to make, judicial language is meaningless.
The claim in the majority opinion that it is sought to maintain this defence on “the principle of estoppel” is an .entire misconception of the position *365assumed by me. As a matter of course, the doctrine of estoppel is inapplicable; it is not claimed that the plaintiff represented a state of facts as existing ■which clid not exist. There is no claim that he induced the defendant to act upon the faith of such fact, as of a thing done, or existing. But the proposition is, that, as a part of the consideration of the tenant taking the lease, and signing the contract, the plaintiff promised to do something collateral thereto, but for which promise he would not have executed the contract, and that the plaintiff knowing this, and afterwards failing to perform the collateral undertaking, cannot enforce the consideration of the written contract without performing the other promise. The distinction is too clear to' require elaboration.
The case of Insurance Co. v. Mowry, 96 U. S. 546, in no manner conflicts with the English authorities cited herein, or those from Pennsylvania and California. In that case the assured was seeking to evade a positive condition, incorporated in the written contract, by showing a parol contemporaneous agreement not to insist on the letter of the contract. The distinction between nullifying a positive written stipulation by a parol contemporaneous agreement or understanding, and asserting a right or liability based upon a collateral agreement not incorporated in the contract, by reason of plaintiff ’ s assurance that the thing which was the inducement to the execution of the writing, would be done as part of the whole consideration, is too palpable to admit of debate. The defendant here declined to execute the written lease except upon the assurance made by plaintiff that this switch would be immediately built. To permit him, after thus luring the defendant into executing the writing, to-take advantage of the omission of the collateral undertaking from the instrument, would be to allow him to perpetrate a fraud and wrong upon his confiding tenant. It would make the rule of convenience and safety invoked by the majority opinion an agent of injustice and oppression. This a court of. *366justice, where the case is clearly made out, should not permit. I am unwilling to become accessory to the wrong.