Barker v. BradleyBarker v. Bradley
- Reporters:
- ,
- Before:
- Earl
Parol evidence of a verbal agreement is competent, although contracts or other instruments in writing have been executed in pursuance of such agreement and by way of partial performance thereof.
Where each of the parties executes and delivers to the other a memorandum, containing, among other things, a recital of the receipt of “one dollar in full of all demands,” and these taken together express a contract between the parties, but without mention of any other consideration, such recitals are not conclusive as to the true consideration, and may be explained by parol.
Prior to December, 1861, the plaintiff, Anthony Fay, David Harrower and the defendant‘s testator, Samuel W. Bradley, were copartners under the firm name of “The Luna Lumber Company;” and in the month of December, the firm failed, and all its property went into the possession of Benj. Chamberlain, who was a large creditor of the firm. The precise
“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.”
And Chamberlain executed and delivered to the plaintiff the following instrument:
“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.”
The $2,000 was not paid at the time these instruments were executed. In February, 1865, Chamberlain and the testator had a settlement in reference to the property that had been transferred to him, and Chamberlain had charged him the $2,000 on his account. In consideration that Chamberlain would strike it out of his account and not bring it into their settlement, he promised that he would pay the $2,000 to the
Earl, Ch. J. 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 betwen 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;
I therefore, reach the conclusion, that the judgment should be affirmed.
Opinion of the Court, per Ingalls, J.
Ingalls, J. 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
“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.”
[stamp affixed and canceled.5 cent Revenue]
“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.”
[stamp canceled.U. S.]
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 $2,000 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
All concur for affirmance, except Sutherland, J.
Judgment affirmed.