On the 26th of February, 1887, the parties entered into a written contract, under seal, for a lease, to be subsequently executed, of a store then to be erected. The contract described the store, and certain rights and privileges pertaining thereto, and then follows this provision: — "Said intended lease shall contain covenants on the part of the lessee for the payment of a net yearly rent of forty-five hundred dollars, in monthly installments of three hundred and seventy-five dollars on the first day of each month during said term, for his keeping said store and basement in good and sufficient condition and repair, and for the payment of all gas and water charges pertaining to said premises, and shall contain all other such covenants and stipulations as are usually contained in contracts of lease of the like premises in said city of Hartford."
This contract does not purport to contain all the provisions that should be embodied in the proposed lease. It was manifestly intended to bind the parties, in general terms, the one to give and the other to accept a lease, leaving the covenants and stipulations to be contained therein to be agreed upon afterwards. The store was finished about October 1st, 1887, and a lease was prepared, which the defendant at first declined to sign, for the reason that there was not laid in the vestibule entrance to the store a flooring in small tile with the defendant's name set in stone in the floor, claiming that there was a parol agreement that that should be done, entered into by the parties about March 1st, 1887. It is agreed that this agreement was not in the written contract for a lease.
It was finally agreed that the defendant should sign the lease, which was done, and that in consideration thereof the plaintiffs should, within one year, put in said tile floor, etc.; which was not done.
In an action on the lease the defendant offered to prove his defense by proving this parol agreement and a failure to *Page 573 perform the same. It was objected to upon the ground "that all negotiations and agreements as to what was to be performed by the plaintiffs in the leasing of said premises were merged and contained in said written agreement and in said lease; and that said parol agreement was variant from and in alteration of the terms of said written lease and variant from the terms of said written agreement."
It must be remembered that the contract which the defendant sought to enforce is not a contract made in February or March relating to a store to be thereafter finished, nor was it an agreement settling the terms of a lease to be thereafter executed; but it was a contract made in October, respecting a store then completed, and to be leased contemporaneously with the agreement; and the thing to be done was to be done on the property demised within one year. I cannot agree that the verbal contract made in October was merged in a written contract under seal and executed in the preceding February.
Nor can I agree that the lease excludes the evidence. The contract had no reference to the terms of the lease, although it did refer to the premises leased. It was not a stipulation to be embraced as a covenant in the lease, but was so far independent of it that it might legally exist contemporaneously with it and collateral to it. If the plaintiffs had also agreed to trade with the defendant at the store to the amount of $1,000 during the first year, the two contracts would have stood upon precisely the same footing. Surely it will not be contended that the lease would exclude parol evidence of such a contract.
There was a suggestion that the parol agreement made when the lease was signed is without consideration. My first answer to that is that the evidence was not rejected for any such reason and the record presents no such question. That is an objection that relates not to the admissibility of the evidence offered to prove the agreement, but to its validity and effect when proved. In the next place, the objection is without force except upon the assumption that the defendant was legally bound to sign the lease as it was. I cannot *Page 574 concede that the assumption was well founded. There is no contract in existence, that we know of, prescribing the terms of the lease, except the lease itself. The contract, of February 26th relates mainly to the manner of constructing and finishing the store. Its terms were substantially complied with before the lease was executed, and those stipulations were not embraced in the lease and were not intended to be. Moreover that contract in terms leaves the matter of covenants an open question.
It will be observed that I attach no special importance to the alleged parol agreement of about March 1st, 1887. In my view its only significance is that it served at least as an excuse for the refusal to sign the lease. The plaintiffs so far conceded the validity of the excuse as to promise that if the defendant would sign the lease the thing that he contended for should be done. It is that promise that the defendant now seeks to enforce. It may be that the parol contract of March 1st was merged in the written contract executed about that time, but that cannot affect the final agreement of October 17th. The latter was complete in itself, and, in legal effect, was independent of the former. Viewed in that light there can be no question about the consideration. There was a matter in dispute between the parties. No matter now which was right. It is enough for our present purpose that the plaintiffs yielded the point, and promised that if the defendant would sign the lease the thing that he contended for should be done. He did so. The consideration for that promise, and its validity and effect, ought, it seems to me, to be beyond all question.
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