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eral law of that state is the common law, it may be inferred that the transaction is governed by its rules as here applied, in the absence of evidence to the contrary; but, when it is shown to be otherwise, the law of the state where the injury occurs is to be regarded.

It is a general principle that, in order to maintain an action of tort founded upon an injury to person and property, the act which is the cause of the injury, and the foundation of the action, must at least be actionable by the law of the place where it is done, if not also by that of the place in which redress is sought. See Forest v. Tolman, 117 Mass. 109, and authorities. It must be for the state of Connecticut to prescribe when and under what circumstances a cause of action shall arise against a corporation which operates a railway within its limits, by reason of an act done by it. It may provide that, for an injury done by its carelessness, there shall be no cause of action on behalf of the injured party, but punishment by indictment only, or it may give to such injured party a cause of action, and for the same injury make the corporation responsible by indictment or other proceeding for a fine or damages, which shall go to the state, the relatives of the injured party, or any other persons named. Com. v. Metropolitan R. R., 107 Mass. 236.

The intestate did, by the common law of Connecticut, have a right of action during her life-time; but there has been substituted for this in that state, she having deceased, the penal action created by the statute.

If

It is the contention of the plaintiff that the cause of action may be held to survive by virtue of our statute, notwithstanding no cause of action now exists in Connecticut. Pub. St. c. 165, § 1. That the special action in Connecticut can now be maintained, is not controverted. If, therefore, this contention of the plaintiff is correct, the defendant continues. liable for its act or neglect in Connecticut by the law of Massachusetts, while it is also liable by reason of the liability imposed upon it by the law of Connecticut as a substitute for its original liability, such liability being still capable of enforcement. The design of our statutes of survivorship is primarily to provide for survival of those actions of tort whose causes occur in this state. similar statutes existed in another state where the original cause of action accrued, it would not be difficult to hold that our own applied to such causes, upon the same principle by which we hold that the intestate herself might originally have brought her action here. When no such cause of action now exists in the state where the injury occurred, it is not easy to see how it can exist here; especially when, in such state, another cause of action, growing out, indeed, of the same facts, has been substituted for it. This would be to subject the defendant to two liabilities,-one existing by the law of the state in which jurisdiction over person or property was obtained, but in which the accident did not occur, and the other imposed by the law of the state where it did occur, and where defendant had its residence; while in either state the liability there imposed would be the only one to which the defendant could by its law be subjected.

It may be suggested that the law of Connecticut, in failing to provide that an action for a personal injury shall survive to the administrator, has negatively but the same effect as a statute of limitations, which operates only to take away the remedy of a plaintiff, while his cause of action still exists. By the ancient common law as it existed before the statute of 4 Edw. III., which was adopted and practiced on in this state before the constitution, (6 Dane, Abr. 607,) no action ex delicto survived to the personal representative; the maxim of actio personalis moritur cum persona being of universal application, (Wilbur v. Gilmore, 21 Pick. 250.) Subsequent to that statute, which was liberally construed, an action for a tort, by which the personal property of one was injured or destroyed, survived to his administrator, such tort being an injury to the property which otherwise would have descended to him. But the theory that a personal injury to an individual was limited to him only;

that no one else suffered thereby; and that, therefore, by his decease, the cause of action itself ceased to exist,-continued.

While the action for personal injury is spoken of as surviving, as there previously was no responsibility to the estate, the statute creates a new cause of action. It imposes a new liability, and does not merely remove a bar to a remedy, such as is interposed by the statute of limitations, which, if withdrawn by the repeal of the statute, would allow an action to be maintained for the original cause. What the new liability shall be, by what conditions it shall be controlled, and whether the original liability shall be destroyed, must be determined by the law of the state where the injury occurs, unless the legislation of other states is to have extraterritorial force, and govern transactions beyond its limits. We perceive no intention to invest it with such force, even if it were possible so to do.

By the decease of the intestate, the cause of action she once had in Connecticut has there ceased to exist. It is for that state to determine what provision, by action or indictment, if any, shall be made in order to indemnify the estate of the intestate or her relatives, or to punish the party causing injury to her. Our statute, permitting the survival of similar actions in this state, does not, therefore, apply.

The question considered in the case at bar was fully and ably discussed in Needham v. Grand Trunk R. Co., 38 Vt. 294, and the same result reached as that to which we have arrived. To the same effect, also, is State v. Pittsburgh & C. R. R., 45 Md. 41.

The plaintiff in his argument attaches importance to chapter 289 of Acts of 1873, by virtue of which the defendant's railroad is operated in the several states through which it runs as a continuous line; but the fact that it is a corporation by the law of Massachusetts as well as Connecticut cannot make its liabilities different or greater in this state on account of transactions occurring entirely in Connecticut; nor are the rights of the plaintiff greater by reason that his intestate, who was injured in this transaction, was a citizen of this commonwealth. Whetford v. Panama R. R., 23 N. Y. 472, 473; Richardson v. New York Cent. R. R., ubi supra.

Exceptions sustained.

NOTE.

A right of action may be enforced by any court which has jurisdiction of such matters, and acquires jurisdiction of the parties, if such right of action is given by the common law, McLeod v. Connecticut & P. R. Co., (Vt.) 6 Atl. Rep. 651; St. Joseph F. & M. Ins. Co. v. Leland, (Mo.) 2 S. W. Rep. 431; or by the statute of the state where the act was done, or the neglect accrued. McLeod v. Connecticut & P. R. Co. (Vt.) 6 Atl. Rep. 651.

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(Supreme Judicial Court of Massachusetts. Middlesex. January 10, 1887.` LANDLORD AND TENANT-ORAL AGREEMENT FOR LEASE-ALTERATIONS IN BUILDINGSEVIDENCE-STATUTE OF FRAUDS.

In an action on an oral agreement for the conveyance of certain real estate, and for a lease of a hall by the defendant to the plaintiff, the defendant agreeing to put into the hall a hard-pine floor, where the statute of frauds is not pleaded, and it appears that the deeds and lease have been executed, and that the lease contains no allusion to the agreement as to the floor, parol evidence is admissible to show it.1 This was an action of contract. At the trial in the superior court, before ROCKWELL, J., the plaintiff testified that on April 5, 1884, he entered into an oral agreement with the defendant, by which he agreed to convey to the defendant two houses, situated on Washington street, in Malden, in consideration of the sum of $5,000 to be paid to him by the defendant, together with a

1 See note at end of case.

lease of a hall belonging to the defendant, for the term of five years, which lease was to be made by the defendant to the plaintiff. He further testified that, after the above agreement was made, but during the same conversation, the defendant promised to put in a hard-pine floor in the hall when he (the plaintiff) should request it; and that he (the plaintiff) promised to cement the cellars in the two houses when the defendant should request it; and that all agreements between the parties relating to the houses and hall, and all matters connected therewith, were made upon said fifth day of April, 1884; and that the keys of the hall were delivered when the agreement to convey was completed, viz., on said April 5, 1884. The plaintiff further testified that a deed of the houses and a lease of the hall were made on April 7, 1884, by his direction, and that upon April 10th the deed was acknowledged, and upon the same day, April 10, 1884, both the deed and the lease were delivered, and the $5,000 paid. The plaintiff further testified that upon April 15, 1884, he was requested by the defendant to cement the cellars, and that he did cement them, and soon afterwards requested the defendant to put in the hard-pine floor in the hall, but the defendant refused so to do, unless the plaintiff would first tell him what he was going to let the hall for; and that he repeatedly requested the defendant to put in the floor, and defendant always refused, except upon that condition. Upon cross-examination, it appeared that both the deed and the lease were silent as to any agreement to cement the cellars, and to put a hard-pine floor in the hall, and the defendant's counsel objected to the admission of oral evidence to prove such an agreement.

At the close of the plaintiff's examination, his testimony being all the direct evidence offered by the plaintiff as to the time and circumstances of making the contract sued upon, the counsel for the defendant requested the court to rule that "no verbal agreement between the parties to a written contract, and made before or at the time of the execution of such contract, are admissible to vary its terms, or to affect its construction;" and that the plaintiff, upon the evidence offered, could not maintain his action, and the court so ruled. Counsel for the plaintiff then requested the court to allow the case to go to the jury upon the second count, which was a count upon an account annexed for $61.60, for cementing 154 yards of cellar bottom, but the court refused the request, and directed the jury to return a verdict for the defendant upon both counts, and the plaintiff alleged exceptions.

Wm. Schofield, for plaintiff.

There is an exception to the rule excluding oral evidence to enlarge or vary or contradict a written instrument. Steph. Dig. Ev. art. 90. See, also, 2 Tayl. Ev. (8th Ed.) §§ 1135, 1147; Lindley v. Lacey, 17 C. B. (N. S.) 578; Malpas v. London & S. W. Ry. Co., 35 Law J. C. P. (N. S.) 166; Morgan v. Griffith, L. R. 6 Exch. 70; Erskine v. Adeane, L. R. 8 Ch. App. 756, 764; Davenport v. Mason, 15 Mass. 85; Pierce v. Woodward, 6 Pick. 206; Lapham v. Whipple, 8 Metc. 59; Preble v. Baldwin, 6 Cush. 549; Willis v. Hulbert, 117 Mass. 151; Carr v. Dooley, 119 Mass. 294; McCormick v. Cheevers, 124 Mass. 262; Brown v. Eastern Slate Co., 134 Mass. 590. The authorities differ as to what is the test of a collateral agreement. HOLMES, J., in Brown v. Eastern Slate Co., ubi supra, 591; Malpas v. London & S. W. Ry. Co., ubi supra; Eighmie v. Taylor, 98 N. Y. 288; Chapin v. Dobson, 78 N. Y. 74; Bradstreet v. Rich, 72 Me. 233, 237; Green v. Randall, 51 Vt. 67; Walker v. Schindel, 58 Md. 360, 367; Basshor v. Forbes, 36 Md. 154; Hall v. Maccubin, 6 Gill & J. 107; Perry v. Hill, 68 N. C. 417; Stewart v. Phoenix Ins. Co., 9 Lea, 104, 111; Moss v. Green, 41 Mo. 389; Thomas v. Hammond, 47 Tex. 42. See, also, Ellis v. Abell, 10 Ont. App. 266.

Directly opposed to the above is a class of cases which applies the principle that a writing is to be regarded as a complete statement of the transaction between the parties, and must show upon its face that it is incomplete, in order to render evidence of any oral agreement competent. Naumberg v.

Young, 44 N. J. Law, 331; Hei v. Heller, 53 Wis. 415; S. C. 10 N. W. Rep. 620. See, also, Brigham v. Rogers, 17 Mass. 571.

A third class of cases goes upon the principle that the agreement sought to be proved must relate to a distinct subject-matter from the matter reduced to writing. Lindley v. Lacey, ubi supra; Chapin v. Dobson, 78 N. Y. 74, 82; Naumberg v. Young, ubi supra; Thompson v. Libbey, 26 N. W. Rep. 1. See, also, Parcell v. Grosser, 1 Atl. Rep. 909; Carr v. Dooley, ubi supra.

A fourth class implies that the agreement to be proved must relate to something in reference to the agreement reduced to writing, and must presuppose that the agreement in writing has been carried out. Eighmie v. Taylor, ubi

supra.

Finally, a fifth class requires that the oral promise or agreement should have been given as an inducement to sign the writing, and then parol evidence is admitted, apparently to prevent a fraud. Bonney v. Morrill, 57 Me. 368; Proctor v. Wiley, 55 Vt. 344; Powelton Coal Co. v. McShain, 75 Pa. St. 238; Shughart v. Moore, 78 Pa. St. 469; Graver v. Scott, 80 Pa. St. 88. But see Bast v. Bank, 101 U. S. 93, 96. See, also,. Erskine v. Adeane, L. R. 8 Ch. App. 756, 767.

The evidence excluded in this case was admissible under the principle stated in several of the above classes of cases. Only a part of the transaction was reduced to writing, and both the deed and the lease are silent as to the oral agreement; and the oral agreement presupposes that the agreement for the sale of the houses has been carried out.

Further, in this case, the transaction between the parties consisted of two distinct contracts, viz.: a contract for the sale of two houses; and a contract by which the plaintiff agreed to cement the cellars in the houses, and the defendant agreed to put a hard-pine floor in a hall. This contract, consisting of mutual promises, was founded upon a distinct consideration, (Backus v. Spaulding, 116 Mass. 418;) and that fact furnishes an additional reason for the admission of the evidence, (Van Brunt v. Day, 81 N. Y. 251.) See, also, Doyle v. Dixon, 12 Allen, 576.

Finally, where the only writings made by the parties operate as a performance of a part of the agreement, and are made for the purpose of performing the agreement, the rule excluding oral evidence does not apply, for the reasons that the parties have never made a contract in writing. Juilliard v. Chaffee, 92 N. Y. 529, 535; Bradshaw v. Combs, 102 Ill. 428; Ludeke v. Sutherland, 87 Ill. 481; Hardesty v. Jones, 10 Gill & J. 404, 416; Twidy v. Saunderson, 9 Ired. 5; Manning v. Jones, Busb. 368; Leinau v. Smart, 11 Humph. 308; Puttman v. Haltey, 24 Iowa, 425; Trayer v. Reeder, 45 Iowa, 272; Greedy v. McGee, 55 Iowa, 759, 760; S. C. 8 N. W. Rep. 651. See, also, Preble v. Baldwin, 6 Cush. 549, 554. The rule excluding oral evidence is applied in cases under the statute of frauds. You cannot enlarge or vary or contradict a memorandum under the statute. Sherer v. Trowbridge, 135 Mass. 500; Williams v. Robinson, 73 Me. 186, 195. But if a part of an agreement is within the statute, and is executed, and a part is outside of the statute, the part outside will be enforced. Page v. Monks, 5 Gray, 492; Green v. Saddington, 7 El. & Bl. 503. See Mann v. Nunn, 43 Law J. C. P. (N. S.) 241; Angell v. Duke, L. R. 10 Q. B. 174; S. C. 32 Law T. (N. S.) 320. Where the part outside of the statute is founded upon a distinct consideration, and can be fairly regarded as an independent agreement, it will be enforced without reference to the other parts. 2 Reed, St. Frauds, § 692. That analogy should apply here for two reasons: (1) The question of whether an agreement is severable is a general question, (Rugg v. Moore, 1 Atl. Rep. 320; Robinson v. Green, 3 Metc. 159;) and, if an agreement is severable for the purposes of the statute, it is severable for purposes of evidence. (2) In the case of an agreement under the statute of frauds, there can be no presumption that the parties intended the memoran

dum to contain the whole of their agreement, for the memorandum is made in obedience to a positive statutory requirement, and not as a memorial and final statement of the contract by the parties, in which all prior statements and agreements are presumed to be merged. It would therefore be unjust to exclude a collateral agreement not within the statute. So, in this case, no presumption can be indulged that the parties made these writings as a final statement of their contract, for the reason that the only writings made were required by law to be made. Pub. St. c. 120, § 13; Id. c. 78, § I.

The plaintiff had a right to go to the jury on the second count, upon the familiar principle that, where one man confers a benefit upon another, at the other's request, or on the understanding that he is to receive payment, he is entitled to a fair compensation for the benefit conferred. Upon this point the plaintiff relies with great confidence upon the decisions in cases within the statute of frauds, where one side of the agreement is fully executed according to its terms, and performance on the other side is refused. Dix v. Marcy, 116 Mass. 416; Bacon v. Parker, 137 Mass. 309–311; Pulbrook v. Lawes, 1 Q. B. Div. 284.

Jerome H. Fiske, for defendant.

It appears by the bill of exceptions that the only questions to be decided in this case are: (1) The plaintiff having testified to certain oral contracts between him and the defendant, is he (the plaintiff) not bound by the contents of written contracts subsequently drawn by the plaintiff, duly executed and delivered, and offered as evidence by the plaintiff to prove his case? Bergin v. Williams, 138 Mass. 544. (2) In this case, as exhibited in the exceptions, can parol evidence be received to control, vary, change, or enlarge the written contracts offered by the plaintiff to show what the agreements between the parties were? 1 Greenl. Ev. (Ed. 1863,) par. 275. It is contended by the plaintiff that the defendant did not carry out his part of the contracts, and, as proof of his contention, introduces the deed and lease, the exceptions stating that they are to be referred to this court. The construction of these contracts is properly submitted to the court. A careful scrutiny, however, of them shows no undertaking to cement cellars, or to lay a hard-pine floor in the hall. Blackmer v. Davis, 128 Mass. 542; Smith v. Flanders, 129 Mass. 322.

FIELD, J. The original agreement was oral, so far as it was an agreement for the sale of "land, tenements, or hereditaments, or of any interest in or concerning them." It was within the statute of frauds, but the statute of frauds has not been pleaded, and the agreement has been executed by both parties as to all matters within the statute. "If some of the stipulations in a contract are within the statute, and others are not, and the stipulations within the statute have been performed, an action lies upon the others, if they are separate." Trowbridge v. Wetherbee, 11 Allen, 361; Page v. Monks, 5 Gray, 492. The written papers executed by the parties were in performance of the oral contract, and there is nothing in them inconsistent with the alleged promise of the defendants to put a hard-pine floor in the hall, whenever the plaintiff should request it. This is a promise in its nature separable from the rest of the contract, and a promise to do something after the execution of the lease, and it relates to a subject-matter distinct from anything contained in the lease. Page v. Monks, ubi supra.

As the original contract was oral, the rule that no oral evidence of prior or contemporaneous agreements can be received to add to or vary the terms of a written contract has not its usual application. But as the performance of the oral contract consisted in part in the delivery of written contracts, if these contracts contained stipulations relating to the subject-matter of the alleged promise, no prior or contemporaneous oral promise inconsistent with their terms could be received, nor could evidence of such an oral promise

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