Mitchill v. Lath

Court of Appeals of New York, 1928.

247 N.Y. 377, 160 N.E. 646.

Dawson, pp. 457-463


Facts: Mitchill agreed to buy a farm from Lath on the condition that an ice house across the street would be removed.Lath agreed, but that condition was never explicitly put into the written contract for the sale of the property.Subsequently, Mitchill moved in and made lots of improvements on the land, but Lath never removed the ice house.Mitchill sues for specific performance.The trial court and intermediate appellate court found for Mitchill.Lath appeals to the Court of Appeals of New York.


Issue: Is the oral agreement to remove the ice house enforceable?


Rule: An oral agreement to modify a written contract is only enforceable if all of the following are true:


1.     The oral agreement must be collateral in form.

2.     The oral agreement must not contradict any express or implied provisions of the written contract.

3.     The oral agreement must not be of the type the parties would ordinarily expect to put into writing.In other words, the written agreement on its face mustnít appear to contain the complete agreement of the parties.


Analysis: According to the majority, the defendantís oral promise fails the third part of the test.The contract says a lot of stuff, but nothing about removing the ice house.The contract appears on its face to contain the all the responsibilities of each side.Basically, an objective observer would expect that if the parties really agreed about the ice house that they would have (and could have) included something about it in the contract.


The minority agrees with the statement of the rule, but not its application.In particular, the minority feels that there is a solid evidentiary foundation for the existence of the oral promise, and that the plaintiff reasonably relied on that promise in deciding to buy the property.Lehman says that the agreement to remove the ice house was ďcollateral to, yet connected withĒ the main written contract.Since there was no independent consideration for the problem to remove the ice house, Lehman figures it can only be enforceable if itís tied to the same consideration as the written contract.


Though Andrews doesnít tackle the issue directly, Lehman finds that the oral agreement doesnít contradict any terms of the written agreement.Lehman points out that there is no express language in the written agreement that says that the defendants can only do that which is explicitly stated in the writing.


Furthermore, Lehman finds it plausible that the parties would leave the agreement about the ice house, which was on a separate parcel of land, out of the document conveying the primary parcel of land from one party to the other.The question is, however, whether the parties intended to render the oral agreement non-existent by adopting a writing that didnít include the terms of that agreement.Lehman thinks that the removal of the ice house isnít so closely bound in subject matter to the conveyance of the land that not mentioning it should have the effect of making it void.


Conclusion: The judgment of the lower courts is reversed and the plaintiffís complaint is dismissed.


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