Opinion
No. 4807.
Submitted April 6, 1960.
Decided May 31, 1960.
1. In the purchase of an unfinished house with no written purchase and sales agreement between the parties, an agreement to supply materials in connection with the sale and conveyance is such an agreement as might naturally be made as a separate agreement without including it in the deed.
2. Hence an oral promise by the seller to furnish the materials necessary to complete the home may be established as an undertaking independent of the conveyance of title and therefore proof of the oral agreement is not precluded by the parol evidence rule.
ACTION OF ASSUMPSIT, to recover damages for the alleged breach of an oral agreement by the defendant to supply the balance of materials necessary to complete an unfinished house which the defendant sold and conveyed to the plaintiff. The advertisement of sale offered "50% of finishing materials in house"; there was no written purchase and sale agreement and the deed contained no reference to any materials to be furnished to complete the house. Trial by the Court resulted in a verdict for the plaintiff.
The defendant's exceptions were transferred by Sullivan, J. in a reserved case, the pertinent part of which is as follows:
"The plaintiff's declaration alleged that he purchased an unfinished house from the defendant. There were further allegations that the defendant promised to furnish the balance of the materials necessary to finish the house to the plaintiff and that the defendant failed in this promise.
"At the trial, the defendant excepted to the admission of evidence wherein the plaintiff testified that the defendant orally promised to furnish materials to complete the house. The grounds for objection to the admission of such evidence are that if such an agreement existed, it was not in writing and therefore a violation of the parol evidence rule inasmuch as it altered and modified the terms of a written agreement between the parties which was then in existence. The objections were overruled subject to the defendant's exception. At the end of the plaintiff's case, the defendant moved for a nonsuit on the same ground. The defendant's motion was denied."
Antoine A. Guertin and J. Russell Widener for the plaintiff.
Leonard G. Velishka and Lucille K. Kozlowski for the defendant.
While the defendant denies that he made any oral agreement to supply additional materials to complete the unfinished house which he sold and conveyed to the plaintiff, he relies on the parol evidence rule to exclude such evidence in any event. Wells v. Jackson Iron Mfg. Co., 47 N.H. 235; Folsom v. Great Falls Mfg. Co., 9 N.H. 355. "The justification of the Parol Evidence Rule is that when parties incorporate an agreement in a writing it is a reasonable assumption that everything included in the bargain is set down in the writing. Though this assumption in most cases conforms to the facts, and the certainty attained by making the rule a general one affords grounds for its existence, there are cases where it is so natural to make a separate agreement, frequently oral, in regard to the same subject matter, that the Parol Evidence Rule does not deny effect to the collateral agreement . . . So in connection with leases and other conveyances, collateral agreements relating to the same subject-matter have been held enforceable." Restatement, Contracts, s. 240 (1) (b), comment d. To the same effect is 3 Williston, Contracts (Rev. ed. 1936) s. 645, where there is listed a number of decisions where parol agreements made by the grantor in a deed as part of the transaction have been enforced citing Kidd v. New Hampshire Traction Co., 74 N.H. 160 and Webber v. Loranger, 79 N.H. 3.
When the plaintiff accepted the deed from the defendant in which nothing was said of furnishing materials to complete the unfinished house, this did not discharge the defendant's oral agreement to do so. 3 American Law of Property (Casner ed. 1952) s. 11.65, p. 166. Restatement, Contracts, s. 413, illustration 2; 84 A.L.R. 1008; 38 A.L.R. (2d) 1310. The promise to furnish materials is similar to promises to make repairs and improvements and parol evidence is admissible against the grantor of land in such cases "even though the deed of conveyance said nothing of it." 3 Corbin, Contracts, s. 587, p. 299. See Stevens v. Milestone, 190 Md. 61. Considering the fact that the parties did not enter into any written purchase and sale contract, an agreement to supply materials in connection with the sale and conveyance of the unfinished house was such "an agreement as might naturally be made as a separate agreement" without including it in the deed. Restatement, Contracts, s. 240 (1) (b); McMahon v. Poisson, 99 N.H. 182, 183. The defendant's oral promise to furnish materials was an undertaking independent of the conveyance of title proof of which the parol evidence rule did not preclude. Levin v. Cook, 186 Md. 535; McCormick, Evidence, s. 211, p. 432; IX Wig. Ev. (3d ed.) s. 2442. There was evidence to support the Court's verdict for the plaintiff.
Judgment on the verdict.
All concurred.