STANGE v. WILSON.

agreement to make it definite is an agreement to alter it; and this can not be done by any contemporaneous parol understanding. The elementary rule, excluding parol evidence offered for any such purpose, is so plainly applicable as to need no explanation.

There is much more plausibility in the second ground, which maintains the admissibility of the evidence as bearing on the question of reasonable time. But it seems to me that it has no real tendency to show what time was reasonable, either alone, or as a step in natural connection with any other proof, proposed or relevant.

The supplemental proof, which the defendant below proposed to introduce, was simply proof of a breach of this parol agreement, in not furnishing articles within the time as promised. That proof was undoubtedly competent to prove damages in case the court should find that it was unreasonable not to furnish the iron as fast as required by the workmen, but it could have no possible bearing on the reasonableness of their requisitions. Unless the proof of the parol agreement being made tended to prove of itself that the time thus fixed was reasonable, independent of any binding force in the agreement, it was rightly ruled out.

It was argued that it had this tendency, because the fact that the parties were willing to agree upon such terms shows they must have thought them reasonable. This is in fact claiming for the parol communications the full force of an agreement; and it would be a fair answer to such a claim to say, that, inasmuch as when they made their written agreement, by which only they were to be bound, they omitted this clause from it, it must follow that they were not willing to agree that it would be reasonable. And this is really the defect in the claim, that it confounds causes with consequences. If time is reasonable, it is because circumstances make it so, and not because it is so agreed; and if parties agree that it is reasonable, it must be presumed that they are so persuaded by the circumstances, which can

STANGE v. WILSON.

not derive any force or bearing from their opinions, whether one way or the other.

When a contract is to be performed within a reasonable time, the law implies that the parties contract in view of all the pertinent facts that may be mutually known to them, and it requires them to exercise such reasonable diligence as under all then and subsequently existing circumstances might be fairly expected. When a court or jury is called upon to decide whether they have complied with what might have been reasonably expected, there must be proof of such facts as will show what ought to have been done. Where there has been an agreement, it must be complied with, whether reasonable or not, simply because the parties for a lawful consideration have seen fit to make it. But where the promise made is no promise in law, it must be regarded as a nullity. To accept it in any shape as a basis or proof of obligation is to enforce it. Upon the theory of this defense, if Stange had sued Wilson for not furnishing his iron in time, and this proof should be received as tending to fix that time, it would require counter-proof to prevent him from having the same benefit as if the parol agreement had been contained in the written. But the rule of law, which excludes parol evidence of agreements where there are writings, does so on the express ground that it must be presumed the writing contains all the parties were willing to adhere to. And it certainly seems unreasonable to allow, in the face of such a rule, any inference whatever that they were willing to adhere to anything else. And to prove,

when a reasonable time is agreed upon, that at the same time it was understood what time would be reasonable, is equivalent to proving they agreed on that time either absolutely or conditionally, but it is no proof whatever of the only important point, which is whether the time was really reasonable. Opinions are excluded from evidence because they are conclusions which the court or jury are to draw for themselves. They are not usually binding upon parties

STANGE v. WILSON.

even when distinctly expressed during negotiations, and are never binding unless when it is understood they are to be acted upon by one who expressly relies upon the greater knowledge of the other. In other words, they are only binding when the expression of an opinion is equivalent to the assertion of a fact. But in this case a fact is sought to be deduced from an opinion, when the existence of the opinion itself is only inferred from an agreement, and when the agreement is void. If it is said the inference should be that what parties are willing to agree upon is reasonable, it is quite as likely, and is an absolute legal presumption, that when parties express their agreements in writing, their minds have settled down upon nothing material which is not in the contract. But inasmuch as unreasonableness is no answer to a contract, the objection becomes still more conclusive that no presumption can be predicated on what parties voluntarily omit to agree upon. An expressed opinion, upon which parties decline to act, would be an unsafe ground to rest upon as proof of a fact; but where fact and opinion are both implied from a proposition which the parties do not accept as binding, the inferences become too remote to fall within any safe rule of evidence. It must be remembered also, that proof that a party thought a certain time unreasonable would have no tendency in law to prove it, and affirmative proof that no time was even spoken of would not exonerate plaintiff if he did not act with proper diligence.

The only case which I have met with which appears to hold that such proof as was here offered tends, by showing what the parties thought, to prove what would be reasonable, is Cocker v. Franklin Manuf. Co. 3 Sumner, 530. The facts are not given so as to show very clearly how far the case is like this, but it would seem, from the language of Judge Story, to have been analogous. It was, however, a nisi prius ruling in a charge to a jury who disagreed, so that it never came up for deliberate review; and the only

STANGE v. WILSON.

authority it purports to rely upon is Ellis v. Thompson, 3 Mees. and W. 445, which rests upon entirely different principles, and which announces the true doctrine, that the facts on which the parties acted, and the assertions of one concerning the existence of facts on which the other relied, may always be shown to explain their conduct and to show the basis of their action. Proof of facts is a very different thing from proof of promises. A misrepresentation of material facts is a fraud. A broken promise can only be ground of redress when in the shape of a binding agreement.

On the other hand, this doctrine is opposed, not only by the principles underlying the rejection of parol evidence to affect written contracts, but also by some cases, at least, which resemble this quite closely, although not absolutely parallel. In Greaves v. Ashlin, 3 Campb. 426, it was held that where a contract was silent as to the time of delivery, evidence of a parol agreement to take the property at once, was inadmissible.

Where articles are actually ready for delivery, a court certainly could not say there would, as matter of law, be anything unreasonable in immediate delivery, and the promise, therefore, was just as pertinent in that case as in this. In Simpson v. Henderson, Moo. and M. 300, a very similar principle was involved, and a similar conclusion was reached. In Lafarge v. Rickert, 5 Wend. 187, it was held that, where a contract was silent as to place of delivery, proof by parol of an agreed place was improper. In Williams v. Jones, 5 B. and Cr. 108, where an agreement by an attorney to take another into partnership mentioned no time for so doing, parol evidence that he was not then admitted, and that nothing was done till his admission, was rejected, although the effect was to render the written contract illegal.

There is in none of these cases, nor in any others that I have found (except the case in 3d Sumner), any intimation that the proof, which was not valid to prove new terms to an agreement, was valid to affect it indirectly, by

HOGSETT v. ELLIS.

raising presumptions concerning the belief or expectation of the parties. It is hardly possible that such a use of testimony would have eluded the ingenuity of so many learned courts and counsel, if it is really admissible. And if such proof is to be received, it is manifest that the rule excluding parol evidence will become very difficult and uncertain in its application, if not entirely useless. The distinction is too refined to be safe, and the presumption required too remote and contingent to furnish any substantial foundation. for legal judgment.

I think there is no error in the record, and that the judgment should be affirmed, with costs.

The other Justices concurred.

Misjoinder:

James H. Hogsett v. Charles Ellis.

Judgments. Under the statute- Comp. L. §4550-it is not misjoinder to include in a declaration a count upon a judgment with counts for use and occupation, and the common counts.

Misjoinder: Ruling of court: Waiver. Where a party to a suit, on his own motion, discontinues as to certain counts in his declaration, by reason of a ruling of the court against him on the ground of misjoinder, he will be held to have waived any objection to such ruling.

Novation:

Statute of Frauds. Where the tenant of a mortgagor verbally agreed (with his consent) to pay rent to the mortgagee, and that the latter should indorse the same upon the debt, he not having released or agreed to discharge any part thereof, Held, That the agreement did not amount to a novation, and that the promise of the defendant (tenant) was to answer for the debt of another, and, therefore, void, not being in writing.

Landlord and tenant: Attornment: Rent: Mortgagee. Where the tenant of a mortgagor entered subsequent to the mortgage, the mortgagee can not recover rent of the tenant without an actual attornment to him, even where the mortgage is recognized as the conveyance of a title; but, even if the agreement in this case would constitute an attornment at common law, the legal notion of attornment can have no application as between the mortgagee and the tenant of the mort gagor, under the laws of this state.

Foreclosure: Title of Mortgagee: Sale. A mortgage in this state conveys no title to the mortgagee, and gives no right of possession, without foreclosure; until then it constitutes only a lien as security for the debt. As purchaser under the foreclosure sale, he stands in the same position as any other purchaser.