532.

In Lynch v. Hunneke (1892) 29 Jones & S. 235, 19 N. Y. Supp. 718, where a lease under seal for a lodging house for males only was of six lofts (above the first floor) "with the appurtenances," it was held that the lessees might show that it was understood that they were to have the exclusive use of the hallway which was the only entrance to the demised premises, and that they refused to hire them if a door was to be cut through in the hallway from a firststory room, or if said room was to be rented as a saloon. The court said: "As the appurtenances were not specified, parol evidence was admissible to show their character and extent; and, that being so, parol evidence was admissible to show that the parties, preparatory to the execution of the lease, met and discussed such character and extent, and agreed that the appurtenances should include all that they appeared to include, and that the defendant would not make a change in such appearances in derogation of his grant, and that, in strict reliance upon the promise of the defendant not to change the appurtenances as they then existed and were understood, the plaintiffs executed the lease."

"Where one becomes the lessee by written instrument of the 'lower floor,' or part of the 'lower floor,' of a building, he commits himself to a recognition of the fact that there are as many upper floors as in truth exist; and where he knows that they are, or are intended to be, occupied by other tenants, and is silent upon the subject, he further recognizes and consents that his lease does not include the privileges or appurtenances necessarily or properly included in or pertaining to the lease of the floors above him, and the nature and extent of such privileges and appurtenances become a proper subject of inquiry dehors the instrument relied on by him." Rojas

A lease of a house, "together with the grounds immediately around said house with the appurtenances," may include the right to the use of water supplied to the premises from a water system owned or maintained by the lessor; but, under the term "appurtenances," there could not be implied an agreement on the part of the lessor to keep in repair the water system or the pipes leading to the leased premises, and oral evidence of such an agreement would violate the parolevidence rule. Bradbury v. Higginson (1912) 162 Cal. 602, 123 Pac. 797. See also, in this connection, Watkins v. Greene (1900) 22 R. I. 34, 46 Atl. 38.

In Ward v. Robertson (1889) 77 Iowa, 159, 41 N. W. 603, where there was no fraud, accident, or mistake, the court declined to cancel a lease of part of a building on the lessee's claim that he was refused a right of way through a room not leased to him, and said: "If there was a right of way through the south room of the building which was an easement appurtenant to the use of the north part, the action could be maintained; but, in the absence of contract, such right must be shown to be necessary to the proper use and enjoyment of the leased property," it being shown to be a mere convenience.

In Norris v. Showerman (1845) 2 Dougl. (Mich.) 16, an equity case, it was said, in construing a lease of water power, as to the subject-matter, that "the situation of the parties, and the subject-matter of their transactions, to which the contract relates, may be taken into consideration in determining the meaning of any particular sentence or provision."

In holding that parol evidence may be admitted to explain an ambiguous timber lease, the court, in Shackelford v. Fitzgerald (1921) 151 Ga. 35, 105 S. E. 597 (equity), said: "The question as to the proper construction of this lease is a close one, and the meaning of it is not altogether free from ambiguity; and upon another hearing it will be proper for the court to hear evidence touching the intention of the

parties as to the subject-matter of the lease, if such is offered."

Where the owner of a farm leased a part of it, viz.: "A dwelling house, stable, garden, potato patch, about 40 acres of land to be sown in oats, and about 35 acres to be planted in corn," in an action against the lessee by one claiming under the lessor, the court said, probably referring to evidence of matters subsequent to the execution of the lease: "As the contract did not designate which particular tracts were intended, it was necessary and perfectly competent, under the well-established rules, for plaintiff to identify and locate the particular land intended by the introduction of extrinsic evidence." Elliott v. Abell (1890) 39 Mo. App. 346.

Louisiana.-Jackson Brewing Co. v. Wagner (1906) 117 La. 875, 42 So. 356. Massachusetts. Murray v. Cherrington (1868) 99 Mass. 229; McGlynn v. Brock (1872) 111 Mass. 219; Taylor v. Goding (1902) 182 Mass. 231, 65 N. E. 64.

Montana. Armington v. Stelle (1902) 27 Mont. 13, 94 Am. St. Rep. 811, 69 Pac. 115.

Nebraska. Nindle v. State Bank (1882) 13 Neb. 245, 13 N. W. 275.

New Jersey.-Elizabeth Town Sav.

Thus, it may not be shown by parol that a lease for a year was one from month to month, either on behalf of the lessor (Dodd v. Pasch (1907) 5 Cal. App. 686, 91 Pac. 166), or on behalf of the lessee (Equitable Life Assur. Soc. v. Schum (1903) 40 Misc. 657, 83 N. Y. Supp. 161).

So, the lessee under a lease construed as creating no more than a tenancy at will cannot show by parol evidence that the lease was executed and delivered by the lessor as a lease for years. Murray v. Cherrington

(1868) 99 Mass. 229.

Where rights of a lessee under a lease of land for the purpose of making bricks had been taken by a railway company under the right of eminent domain, and it was found that, by the lease, the lessee was merely a tenant from year to year, it was held, as between the company and the lessee, that evidence tending to show that, by the custom of the brickmaking trade, brick land is never hired from year to year, was properly rejected. Re Stroud (1849) 8 C. B. 502, 137 Eng. Reprint, 604, 16 L. J. C. P. N. S. 117.

The lessee may not show that the lessor promised that the term should be five years, though the written lease was for three, and that the lessee entered, relying on such promise. Mageon v. Alkire (1907) 41 Colo. 338, 92 Pac. 720.

The lessee may not show that it was orally agreed at the time of making the lease that he might surrender on a certain contingency, which had oc

curred. McGlynn v. Brock (1872) 111 Mass. 219; Taylor v. Goding (1902) 182 Mass. 231, 65 N. E. 64; Johnson v. Oppenheim (1873) 55 N. Y. 280.

It was held in Hukill v. Guffey (1892) 37 W. Va. 425, 16 S. E. 544, that parol evidence will not be received to ingraft upon or incorporate with a valid, written oil and gas lease, a verbal agreement, made contemporaneously therewith, and inconsistent with its terms,-to wit, a condition that it should terminate in a certain contingency.

The lessee may not show that it was verbally agreed that he should have the option to renew, where no fraud is alleged. Jackson Brewing Co. v. Wagner (1906) 117 La. 875, 42 So. 356, where the court said: "The codal injunction is very plain. Parol evidence is not admissible regarding what had been said before or at the time of the making of the act, nor since, as to that matter. Civil Code, art. 2276.”

Where a lease for one year, expiring April 30, 1920, provided that "the tenant hereby expressly agrees to give formal written notice to the landlord on or before the 15th day of January, 1920, of tenant's wish as to continuance of the tenancy beyond the term hereby granted," it was held that there was no ambiguity, and that it was error to permit the lessee to show that he was orally assured that he had the privilege of renewal. Bernstein v. Smith (1922) 119 Misc. 34, 194 N. Y. Supp. 789.

In Becker v. Baker (1916) 174 Iowa, 97, 156 N. W. 317, where the lessees claimed that, at the same time that the written lease was executed, an oral lease was made, extending the time for one year after the term created by the written lease had expired, it was held that the oral lease was merged in the written one, and could not be proved by parol.

In Elizabeth Town Sav. Inst. v. Conroy (1881; N. J. Dist. Ct.) 4 N. J. L. J. 189, it was held that the lessee in a lease for two months and fifteen days might not show by parol evidence that, at the time the lease was executed, he wished a lease for one year longer, that the lessor's agent declined to

make a longer lease, but said that, at the end of the term, he would give him a lease for a year.

In Keegan v. Kinnaire (1883) 12 III. App. 484, where a lease under seal contained an express covenant that the lessees, the defendants, would surrender up the demised premises to the lessor at the expiration of said lease, it was held that the trial court erred in allowing evidence of an alleged parol agreement, made contemporaneously with the execution of the written lease, to the effect that the defendants might remain in the occupation of the demised premises on and after the day of the expiration of the lease, but as tenant from month to month, subject to a notice of thirty days to quit.

The lessee in a mining lease may not show that the lessor verbally promised to extend the term in a certain contingency which had occurred. Armington v. Stelle (1902) 27 Mont. 13, 94 Am. St. Rep. 811, 69 Pac. 115, decided under statutes which are stated by the court to be "but declaratory of the common law," and which provided as follows: "The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument.

When

the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore there can be between the parties and their representatives, or successors in interest, no evidence of the terms of the agreement other than the contents of the writing, except in the following cases: (1) Where a mistake or imperfection of the writing is put in issue by the pleadings. (2) Where the validity of the agreement is the fact in dispute." This last section also provides that evidence shall not be excluded which tends to explain an extrinsic ambiguity in the writing, or to establish illegality or fraud.

In Nindle v. State Bank (1882) 13 Neb. 245, 13 N. W. 275, it was held that a lease "for the term of six months from the 6th day of December, 1881,

which term will end on the 6th day of May, 1882," with a covenant "to pay as rent for said premises the sum of $750, and to pay the same in monthly instalments of $125 each on the first day of each and every month during said term," is not ambiguous; it is a lease for six months from December 6, and parol evidence is not admissible to change its terms.

So, a lease by which the lessees agreed to take a farm "for one year and the privilege of four years, at $500 per year," is not ambiguous so as to admit parol evidence of intent. It means that the term is for one year, but, at the election of lessees, may be for four years in all. Willis v. Weeks (1906) 129 Iowa, 525, 105 N. W. 1012. In Doe ex dem. Spicer v. Lea (1809) 11 East, 312, 103 Eng. Reprint, 1024, it was held that a lease of lands by deed, since the new style, to hold from the feast of St. Michael, must be taken to mean from New Michaelmas, and cannot be shown by extrinsic evidence to refer to a holding from Old Michaelmas. Compare, as to a lease not under seal, Den ex dem. Peters v. Hopkinson (1823) 3 Dowl. & R. (Eng.) 507, infra, IV. c, 2.

In Rhodes v. Purvis (1905) 74 Ark. 227, 85 S. W. 235, it was held that parol evidence was not admissible to explain when the term began, when the lease read, "for the term of one year from the date of occupancy, which shall commence as soon as vacated by the present occupants," and that therefore, when the occupants refused to get out, and resisted the efforts of the lessor to put them out, and never vacated, it was held that the time for the lessee's possession had not arrived when he commenced his action, and that he showed no breach of the contract on the part of the lessor.

In New York v. Warner (1922) 119 Misc. 687, 197 N. Y. Supp. 218, it was held that the lessee might not show in defense of an action for rent that there was an oral understanding, as he phrased it in one instance, that the rent was not to begin until another occupant of part of the premises had been removed, and, as he phrased it in another instance, that the lease was

not to become effective until that event.

The surety may not show a contemporaneous verbal agreement varying the term of the written lease and the contract of suretyship. Brady v. Peiper (1856) 1 Hilt. (N. Y.) 61.

2. Parol evidence admitted.

In a few cases parol evidence as to the term of a written lease has been held admissible.

In Duckett v. Biggs (1920) 57 Mont. 443, 188 Pac. 938, where the nature of the "first counterclaim" does not appear, the court said: "To sustain his first counterclaim, it was necessary for defendant to show that he was rightfully in possession of the premises at the time his cause of action accrued; or, in other words, it was necessary for him to show that the lease had not expired. By its terms the lease provides that the premises are let to the defendant 'to raise one crop of winter grain,' and there is no other limitation upon the time for which the lease was to run. Since the terms of the lease are ambiguous, the circumstances under which it was made and the intention of the parties were proper subjects of inquiry."

In Brincefield v. Allen (1901) 25 Tex. Civ. App. 258, 60 S. W. 1010, an action by the nonowner for breach of a contract or lease to farm on shares, where the length of the term was not stated, but the plaintiff claimed it was for one year, the court said: "The contract sued on in this case does not show the length of time for which the premises were leased, and either party could allege and show by parol the agreement as to how long the contract was to continue, if there was such an agreement; and if there was no express agreement on this subject, evidence as to custom and usage would be admissible under proper allegations."

In Hall v. Huffman (1862) 32 Mo. 519, an action by a lessor of a farm on shares, against the lessee, under a lease dated March 1, in which the lessee covenanted to cultivate the land in a husbandlike manner, it was held that the lessee was properly permitted to show by witnesses that the written

lease or agreement sued on did not bear date on the day that it was written, but that it was written at a later date than it purported to have been on its face.

In the briefly reported case of Legget v. Harding (1858) 10 Ind. 414, the court said: "The lease was for one year, but did not, in the body of it, state when the year was to commence. It was dated on the 2d of October, 1854. The defendant proved that it was not actually signed till February, 1855. The plaintiff was then permitted to prove that the contract was made and reduced to writing on the 2d of October, 1854; that the year was to commence at that date; that possession of the mill was then given and received; and that, by accident or carelessness, the agreement was not actually signed till February, though it was then signed with reference to its having taken effect on the day of its date. We think the court did not err in permitting the proof."

In Green v. Robinson (1833) Wright (Ohio) 436, the court said: "It is material that the lessors have title or authority to lease when they execute the lease. The lease can only take effect from the time of its execution and delivery; the date is only prima facie evidence of the execution, and may be explained by proof of the actual time." It has been held that the lessee might show that the lessor verbally agreed to give possession two weeks before the commencement of the term specified in the written lease. Corn v. Rosenthal (1892) 1 Misc. 168, 20 N. Y. Supp. 632 (stating no reason). See also further appeal in (1893) 3 Misc. 72, 22 N. Y. Supp. 700.

Where the term of the written lease commenced October 1, 1905, the lessee, in his complaint, also alleged that, as an additional consideration to the plaintiff for the signing of the lease, the defendant agreed to give the plaintiff the possession of the premises on August 15, 1905, and on that day to have the premises in a habitable and tenantable condition, and alleged a breach of this agreement by the defendant. It was held error to exclude parol evidence that, as a condition for

making the lease, it was agreed that the lease should not take effect unless possession was given to the plaintiff on August 15, 1905, as "the plaintiff was entitled to prove the collateral agreement, made prior to the signing of the lease and in consideration of the lease itself." Schweig v. Manhattan Leasing Co. (1907) 54 Misc. 233, 104 N. Y. Supp. 371.

In Bice v. Siver (1915) 170 Iowa, 255, 152 N. W. 498, where the parties orally arranged early in the fall for the leasing of the premises the following year, it was held that the lessee might show that it was agreed that he should fall-plow some of the land, and that the lessor prevented him from so doing, although, later in January, the parties entered into a written lease concerning all matters involved except that which must have been previously carried out, as the contract was partly in parol and partly in writing.

See also, for a lease considered ambiguous, Conservative Realty Co. v. St. Louis Brewing Asso. (1908) 133 Mo. App. 261, 113 S. W. 229, supra, III. d, 3, (a).

In Den. ex dem. Peters v. Hopkinson (1823) 3 Dowl. & R. (Eng.) 507, where the term of a lease not under seal began at Lady day, the court held that it might be shown by parol that by Lady day was intended that day by the old style. Compare, as to a lease under seal, Doe ex dem. Spicer v. Lea (1809) 11 East, 312, 103 Eng. Reprint, 1024, supra, IV. c, 1.