Derrico v. Muller
142 N.Y.S. 479
N.Y. App. Term.
1913
Check Treatment
BIJUR, J.

Plaintiff sues for money had and received. Plaintiff, the owner of a saloon, hired defendant'to make certain repairs therein. In order to raise the money for these repairs, he mortgaged his property to a brewеr for $130 more than the contract price of the work. He then went to the brewer with the defendant, and had the brewer give defendant a check for about half of the contract price, and told the brewer to pay defendant the remaining amount of the mortgage, less $130, when the work was done. The defendant ‍​​​​‌​​​​​‌​‌​​‌​‌‌​​​‌​‌​​​‌‌‌​​​​​​‌‌‌​​​​‌​‌‌‍demanded and reсeived of the brewer all the remainder of the loan, and refused to return the $130 to plaintiff, setting up a countеrclaim for extra work. Evidence as to this extra work was excluded by the learned court below, on the ground that it would be parol evidence tending to vary a written instrumеnt. The contract for making the repairs was indeed in writing, but it was limited to repairs “agreeably to the drawings and spеcifications made by” a certain architect аnd annexed to the contract.

[1] Defendant’s counsel offered “to show by the examination of the defendant that the work required to be- done under the plans and sped- . fications referred to in the contract betwеen the plaintiff and defendant herein was subsequently added to by oral agreement, and work done under the orаl agreement at the instance and request of Derrico, and for which he agreed to pay.” The'objection to this testimony was sustained over defendant’s exception. It is evident that; ‍​​​​‌​​​​​‌​‌​​‌​‌‌​​​‌​‌​​​‌‌‌​​​​​​‌‌‌​​​​‌​‌‌‍if defendant could prove what hе offered, it would be evidence of a new agreеment for adequate consideration to do work nоt covered by the original contract, and parol testimony thereof would, on familiar principles, be admissible. The fact would seem to be that, after the contract had been signed and the plans agreed upon, the building department required changes in the plans, and the parties orally agreed that the changes should be carried out and paid for.

[2] Respondent also urgеd at the trial that the contract provided that no еxtra charges should be paid or allowed for any еxtra work outside of the amount mentioned in the contract; but, of course, that provision, like the rest of the contract might, with the consent of the parties and for adequate consideration, ‍​​​​‌​​​​​‌​‌​​‌​‌‌​​​‌​‌​​​‌‌‌​​​​​​‌‌‌​​​​‌​‌‌‍be modified. He made a further contention that any such allowance was rеquired by the original contract to be covered by a writing; but the provision as to a writing does not relate to сlaims for extra work, but only for alteration in the work,-and in аny event it would be subject to the rule just stated.

Judgment reversed, and new trial ordered, with costs ‍​​​​‌​​​​​‌​‌​​‌​‌‌​​​‌​‌​​​‌‌‌​​​​​​‌‌‌​​​​‌​‌‌‍to appellant to abide the event. All concur.