Summary
In Barker v. Bradley (42 N.Y. 316) the court held that parties may agree to rest in parol and execute written instruments in part execution of the parol agreement, and not for the purpose of putting the agreement in writing.
Summary of this case from Intercontinental Credit Corp. v. PollakOpinion
Argued by the respondent March 23d 1870
Decided June 21st, 1870
Cary Bolles, for the appellants.
A.G. Rice, for the respondent.
While the evidence in this case is not as satisfactory as could be wished, yet, under the rules applicable to appeals in this court, it must be considered as established that, in the fall of 1864, Benjamin Chamberlain agreed to pay the plaintiff $2,000 for his interest in the property of the "Luna Lumber Company," and that subsequently the testator, Samuel W. Bradley, upon a consideration passing between him and Chamberlain, promised to pay the $2,000 to the plaintiff. Upon such a state of facts, I think there can be no doubt of the plaintiff's right to recover. ( Barker v. Bucklin, 2 Denio, 45; Lawrence v. Fox, 20 N Y, 268; Judson v. Gray, 17 How. Pr., 289). Upon the trial, it was claimed by the defendants, that the agreement between the plaintiff and Chamberlain was reduced to writing in the two instruments dated February 4, 1865; and, as nothing was said in these instrument about the payment of the $2,000, that it was incompetent for the plaintiff to prove by oral evidence the parol agreement to pay it, and they objected to such evidence. The referee overruled the objection and received the evidence, and the defendants excepted. In this I cannot perceive that the referee committed any error. The general rule is not controverted that parol evidence is inadmissible to vary, explain or contradict a written agreement. Where the parties have reduced an agreement to writing, the writing is supposed to contain all the agreement, and is the only evidence of it; and all prior or contemporaneous declarations and negotiations between the parties are excluded as evidence of the agreement, or any part of it. But here the agreement was not reduced to writing. It was intended by the parties to rest in parol, and the written instruments were subsequently executed in part execution of the parol agreement, and not for the purpose of putting that agreement in writing. It is well settled, that a written instrument, thus executed, does not supersede a prior parol agreement. ( Renard v. Sampson, 12 N Y, 561; Thomas v. Dickinson, 2 Kernan, 364; Hutchins v. Hubbard, 34 N.Y., 24; Bowen v. Bell, 20 John., 340; Johnson v. Hathorn, 3 Keys, 126; McCullough v. Girard, 4 Wn. C.C.R., 289; Mowatt v. Ld. Londesborough, 3 Ellis. B., 307.) It is clear that the nominal consideration of one dollar was inserted in each instrument, not for the purpose of expressing the true consideration, but merely to make the instrument operative; and the agreement to pay the true consideration was left in parol. But if these said instruments had been executed at the time of the parol agreement, and are to be regarded as containing the agreement between the parties in the sense claimed by the defendants, yet neither party would be concluded by the consideration expressed. In reference to all instruments, acknowledging the receipt of a consideration, in the form contained in these instruments, it is now well settled, that it is competent by parol to show that no consideration was in fact paid or received, or that the consideration was greater or less than, or different from, the one expressed. This may be done for every purpose, except to impeach or destroy the instrument. The amount or kind of consideration is not considered an essential part of the contract, and is open to contradiction or explanation, like a common receipt. ( Frink v. Green, 5 Barb., 456; Bingham v. Weiderwax, 1 N.Y., 509; Murray v. Smith, 1 Duer, 412; McCrea v. Purmort, 16 Wend., 460.) Within these cases, no rule of law was violated by the admission of the parol evidence, to show that Chamberlain agreed to pay the plaintiff $2,000, instead of the one dollar, the receipt of which was acknowledged.
I therefore, reach the conclusion, that the judgment should be affirmed.
The Luna Lumber Company, a partnership firm consisting of the plaintiff, Anthony Fay, David Harrower, and the testator, Samuel W. Bradley, failed, and the property of the firm passed into the hands of Benjamin Chamberlain, who was a creditor of the firm. Chamberlain applied to the plaintiff to release his interest in the property, and offered to pay the plaintiff $2,000 and indemnify him against liability for the debts of the company; which offer was accepted by the plaintiff, and the following instruments were executed by the parties respectively:
"Received, East Randolph, February 4, 1865, of B. Chamberlain, one dollar in full of all demands; also, in full of all demands against the Luna Lumber Company, and all the members thereof, which demands I assign to B. Chamberlain without recourse to me.
"BENJAMIN BARKER." _ _ | 5 cent Revenue | | stamp affixed and canceled. | — —
"Received, East Randolph, February 4, 1865, of Benjamin Barker one dollar in full of all demands, and I am to clear him of all liability on account of the Luna Lumber Company, together with all notes and papers taken up against said company by me.
"B. CHAMBERLAIN." _ _ | U.S. | | stamp canceled. | — —
The $2,000 was not paid. In 1867 a final settlement was made between Chamberlain and Samuel W. Bradley, and the property of the company, to the value of about $250,000, held by Chamberlain, as the evidence pretty clearly shows, as the agent of Bradley, or in some other capacity for his benefit, was transferred by Chamberlain to Bradley; and at the time of such transfer the claim of Barker for the $,2000 was discussed, and Chamberlain proposed to retain it out of the fund, but Bradley declined to have it retained by Chamberlain and promised to pay the same to Barker. Such was, in substance, the arrangement. I perceive no substantial reason why Bradley did not render himself liable to Barker for the $2,000. If Chamberlain acted as the agent of Bradley in making the arrangement with Barker, the unqualified recognition of his acts by Bradley, at the time of the transfer of the property to him, amounted to a ratification of the acts of Chamberlain and rendered Bradley clearly liable. If, on the other hand, Chamberlain was not to be regarded as the agent of Bradley, then the latter became liable to pay Barker in consequence of receiving of Chamberlain the property, coupled with a promise on the part of Bradley to pay Barker the money. The effect of such transaction was to create a cause of action in favor of Barker against Bradley for the money which Chamberlain placed in his hands for the benefit of Barker, and which Bradley agreed to pay to Barker. ( Burr v. Beers, 24 N.Y., 178; Lawrence v. Fox, 20 N.Y., 268; Barker v. Bucklin, 2 Denio, 45; Judson v. Gray, 17 Howard, 289; Farley v. Cleveland, 9 Cowen, 639.) The defendants are in no situation to insist that the $2,000 cannot be recovered, because not evidenced by a written instrument executed at the time the papers were exchanged between Chamberlain and Barker, for the reason that the promise of Bradley was subsequent to the execution of such papers, and was founded upon a good consideration passing to Bradley. The judgment should be affirmed with costs.
All concur for affirmance, except SUTHERLAND, J.
Judgment affirmed.