5 Cow. 506 | N.Y. Sup. Ct. | 1826
The delivery of the deed was, no doubt, a condition precedent to the payment of the money; and, but for the parol agreement, the plaintiff must have sought the defendant, and offered him the deed. There can be no doubt that a written contract cannot be contradicted by parol; and that all which passes between parties previous to a writing, is merged in the writing. But in this agreement no place was mentioned for the performance of it; and surely it was competent for the defendant, at any time after the execution of the agreement, to' designate the place where it should be done. Besides, it is questionable whether any offer of a deed was necessary, as the defendant had told the plaintiff’s agent that it was unnecessary; for he, the defendant, should not perform the agreement.
The defence offered was properly excluded.- The case of Dorr v. Munsell, (13 John. 430,) is in point. There the plea was, that the plaintiff obtained the bond fraudulently, by falsely representing himself as the inventor and patentee of an improvement, which it was averred Avas untrue. The court decide the plea is bad, and cite 2 John. 177; where it is decided that a fraudulent representation of the quality and value of the thing sold, forms no defence to a suit on a specialty. The fraud which avoids a deed, is not a fraudulent representation as to the consideration, but a fraud relating to the execution of it; as a fraudulent misreading or obtaining such an instrument as the obligor did not intend to give.
The motion for a neAV trial must be denied.
New trial denied.
