Argued May 2, 1892
Decided May 31, 1892
Thomas G. Shearman for appellant.
Edward S. Clinch for respondent.
The judgment awarded by the referee to the plaintiff was predicated upon a breach of the contract by defendant in two respects. First, the failure to deliver the iron called for by the plans and specifications in sufficient quantity, or as rapidly as the progress of the work required; and, second, the failure to lay the floor of the pier as fast as it was practicable to do it.
The appellant contends that it was not liable for the delay in the laying of the floor of the pier, and if this contention is sound the judgment must be reversed, as it is impossible to determine what portion of the damages is properly attributable to the delay in furnishing the iron.
At the defendant's request the referee found that on April 24, 1884, the parties entered into the written agreement set out in the preceding statement, and he refused to find "That the defendant did not agree to lay the floor of the pier as fast as the plaintiff might require it for the erection of the iron." And to this refusal the defendant excepted.
In his formal decision the referee found that the defendant's obligation included the delivery of the iron at the site of the pier as rapidly as the progress of the work required and the laying of the floor of the pier as fast as practicable. It appeared from the evidence that the floor of the pier was the subject of a separate contract which had been made with a carpenter at Cape May, of which fact plaintiff was informed before she made her agreement. If, however, defendant agreed that such work should be done within a certain time it would be of no importance by what instrumentality it sought to perform it and it would be equally liable for the delays of an independent contractor as it would be if it had undertaken to do the work itself.
And so upon the trial plaintiff was permitted to give evidence over the defendant's objection and exception that defendant did undertake and agree by parole that the floor of the pier should be laid so that plaintiff could complete her work within thirty days.
We are of the opinion that this evidence was clearly incompetent. The conversations testified to were had before the written agreement was executed and the subject was made a part of that agreement. All prior negotiations and oral promises on the same subject were merged in the written contract and the rights and duties of the parties are to be determined by that instrument. It must be presumed to contain the whole engagement of the parties.
To bring a case within the rule admitting parole evidence to complete an entire agreement of which a writing is only a part, two things are essential: First. The writing must appear on inspection to be an incomplete contract; and Second. The parole evidence must be consistent with and not contradictory to the written instrument. ( Engelhorn v. Reitlinger, 122 N.Y. 76; Thomas v. Scutt, 127 id. 133.)
This case does not fall within the rule, and the exception to the admission of the evidence was well taken.
This exception would not, however, be fatal to the judgment if the written agreement was susceptible of the conclusion reached by the referee in his findings.
But we do not think that it is and that the conclusion that the defendant agreed "to lay the floor of the pier as fast as possible" cannot be sustained.
There is a clear distinction made in the contract between the iron work and the floor of the pier. There is a positive stipulation "to deliver all iron at the site of the pier," and it is a fair inference that this was to be done "as rapidly as the progress of the work required," as found by the referee.
But there is no positive agreement to lay the floor of the pier. The only reference to that work is as a condition to the performance of plaintiff's work within thirty days.
It may be assumed that the defendant desired the iron work to be done in thirty days and this plaintiff agreed to do provided or on condition that the floor was laid as fast as required for the erection of the iron.
It was essential to the performance of plaintiff's work that the laying of the floor of the pier should follow rapidly the driving of the piles as the pier extended into the ocean. But defendant did not obligate itself to do that work. Plaintiff knew that it had been made the subject of a separate contract with other parties and she was under no obligation to perform her contract within thirty days if the floor was not laid. Delay in the laying of the floor of the pier had, therefore, no other effect than to relieve her from her obligation to perform in thirty days.
It could not be made the basis of a claim for damages against the defendant.
So far, therefore, as the judgment proceeds upon any delay in laying the floor of the pier we think it is erroneous and must be reversed.
This conclusion renders unnecessary any consideration of the other questions argued as the exceptions upon which they rest may not arise upon a new trial.
The judgment should be reversed and a new trial granted with costs to abide the event.