Bush v. Tilley

49 Barb. 599 | N.Y. Sup. Ct. | 1867

By the Court, Johnson, J.

The plaintiff was very properly nonsuited upon the trial. His contract, which was in writing, when he came to introduce it in evidence, was wholly different from the one set forth in the complaint, and only entitled him to one half the quantity of barrel heads which he claimed, and which one half, he admitted in the complaint had been delivered by the defendants, and received by him. It was clear, therefore, upon his own showing, that he had no cause of action. The contract had not been broken, as he had alleged in his complaint, but had been performed by the defendants. The plaintiff's offer to prove by parol, that it was agreed orally between the parties, before the agreement was reduced to writing, that the price of • barrel heads should be six cents each barrel, and of half-barrel heads five cents each half-barrel, and that the words barrel and half-barrels had been omitted by mistake from.' the writing, was properly rejected. To have allowed it would have been a violation of one of the plainest' rules of evidence. The. "writing was the .highest evidence, of what the contract subsisting between the parties actually-was, and the proposition was to change it and make it a different contract by inferior evidence. All the rules of evidence, both in law and equity, are in favor of. the ruling of the court, on the question presented. It would be idle to cite authorities in support of such a proposition. The other parol evidence offered, to explain, and vary, the written contract, was properly excluded. The contract between the parties, as is apparent, was to be in writing, and was reduced to writing accordingly. Until this contract was alter- ' ed by the consent of all the parties thereto, or reformed by judicial sentence, there was no other contract subsisting between them than the one thus written. The previous oral-negotiations, or stipulations, were all merged in the writing, and did not stand for the agreement, or for any agreement between the parties. If the writing, by reason of any mistake of fact, did not express the agreement, in full, a court of equity might reform and correct it by decree, in a direct action for that purpose ; bu't it is impossible to change or reform it by parol evidence, in a mere action. at law, arising upon an alleged breach of such" contract, and seeking to recover, damages only. If the alleged previous oral arrangexnent is declared upon, as the subsisting agreement, as is sought to be done here, the subsequent written agreeement duly executed, the moment it is presented in evidence, destroys the oral one and takes away its character as an agreement, entirely ; and no amount of parol evidence can give it force or vitality, as against the written version. The written version must be changed, or the contract must stand and be performed as first written. A written contract cannot be thus avoided, and rendered of no effect. The application of the plaintiff’s counsel for leave to amend his complaint, upon the trial, so as to convert the action into one of equitable cognizance, to reform the written agreement, was properly denied. An amendment of that character would have changed the nature and cause of action, entirely. The cause of action alleged was the breach of a subsisting contract between the parties, to the injury of the plaintiff. And the relief asked was a judgment for the amount of damages sustained. Had the amendment been allowed, the cause of action would have been the occurrence or existence of a mistake, by means of which the written instrument failed to express fully the real agreement between the parties; and the relief sought, in that case, would have been the reformation of the written instrument, so that it should express what the parties had agreed upon. As an incident to the main purpose, and gist of the action, the plaintiff might, according to the decisions of this state, had he succeed in the reformation, have recovered his damages also, if there had been a breach of such reformed contract. But the two actions are as essentially unlike as two actions well can be. The amendment would have changed substantially the claim as set out in the complaint. It was" clearly, therefore, not a case for the amendment of the complaint at the trial, whatever might have been done upon a motion founded upon affidavit and notice. It is claimed by the plaintiff’s counsel that the mistake was averred in the complaint and issue taken upon it in the answer, and that this was the only issue presented by the pleadings; and that there was.error in refusing-to try the issue thus presented. But no such allegation of fact was made in the complaint, in any sense whichcharacterizes the statement of a fact, in a complaint, constituting a cause of action. All that is said on the subject is thrown, in by way of parenthesis for the mere purpose, like all other parenthetical sentences, of qualifying or explaining,' the sense of the principal statement of fact. To call such an insertion in a pleading, a statement, or averment of a fact, constituting a cause of action, is to 1 ignore or confound all ideas of premises and conclusions which belong to all pleadings, in all actions. If this were allowable, there could be no system or certainty in complaints and answers, and courts would be left to uncertainty and endless speculation as to what was presented for trial.

[Monroe General Term, September 2, 1867.

The cause of action which the facts, as stated, constituted was very plain; and was not sustained by the evidence. The nonsuit was therefore proper, and a new trial should be denied.

J. C. Smith, Welles and Johnson, Justices.]