Howes v. Barker, 3 Johns. 506

Howes v. Barker

3 Johns. 506 | N.Y. Sup. Ct. | 1808

Thompson, J.

Could the plaintiff’s action in this case be sustained atlaw; without infringing upon what I consider well settled principles, I should think the nonsuit ought to be set aside ; for if the facts offered to be proved, were trud, there has been a mistake made in the deed, which ought to be rectified. But relief, in my opinion, is not to be had in a court of law. There is no pretence of any fraud having been practised upon the plaintiff. The most that can- be alleged is, that there has been a mistake with respect to the insertion of the consideration money in the deed. The contract between the parties, according to the articles of agreement, • was • executory, and having been *509executed, and consummated, by the deed subsequently given, the agreement became null and of no further effect. If it remained in force, the action, if at all sustainable, should have been upon the covenant. This is not like the case of Weaver v. Bentley. (1 Caines, 48.) The court there sustained. the action for money had and received, on the ground that the defendant having altogether failed to perform the contract, on his part, the plaintiff had his election, either to proceed on his covenant for damages, or to disaffirm the contract, and to bring his action to recover back the money he had paid. The present case, however, is not one where the plaintiff claims the right of disaffirming the contract, but has consummated it by the acceptance of a deed. The deed cannot be considered as an execution of the contract in part only. If an execution at all, it must be of the whole contract, and the articles of agreement are a nullity. If so, the testimony offered in support of the plaintiff’s action, to show that the consideration expressed in the deed was more than ought to have been paid, could be viewed in no other light, than as parol evidence, repugnant to the written contract. That such testimony is not admissible, has been repeatedly ruled in this court. (2 Caines, 161. 1 Johns, Rep. 418.) The language of the court, in those cases, was, that it cannot be a safe, or salutary rule, to allow a contract to rest part-, ly in writing, and partly in parol. Whenever it is reduced to writing, that is to be considered the evidence of the agreement, and every thing, resting in parol, becomes thereby extinguished. I cannot perceive why any parol agreement, varying the consideration money expressed in the deed, does not fall within this rule, as much as if it related to any other part of the contract. There is, how-., ever, an express adjudication of this court on that point, lathe case of Schermerhorne v. Vanderhuyden, (1 Johns. Rep. 140.) The court there say, “ the consideration for the assignment is expressly stated in the deed of assignment itself, and the parties are thereby precluded from retting up any greater or different consideration. To, al-. *510low of parol evidence for that purpose, would be to ex-? tend, or substantially vary the language of a written con-? tract. Though the promise in question may have been made previously to the assignment, yet after |he execution of the instrument wc must presume, that the father and son altered the consideration mentioned at first, and finally acted upon that which is set forth in the assignment.” So in the case before us, we must presume after the execution of the deed, that the consideration therein mentioned, was the one finally agreed on between the parties. The testimony offered, to show an agreement, at the time the deed was executed, tohave the land surveyed, and the price regulated by that survey, was properly rejected, as coming within the principle adopted by this court in the case of Mumford v. M'Pherson. (1 Johns. Rep. 414. See also Bradley v. Blodget, Kirby’s Rep. 22.) The plaintiff was permitted on the trial to adduce testimony to show that the defendant had, after the execution of the deed, acknowledged the mistake, and promised to refund the money, but he altogether failed in establishing such a promise.

Whatever view, therefore, is taken of the case, I think the nonsuit ought to stand ; and that the present motion must be denied,

Spences, J. was of the same opinion.

Kent, Ch. J.

I am of the same opinion. I confes.s that I have struggled hard, and with the strongest inclina- - tion, to see if the action for money had and received, would not help the plaintiff, in this case ; but I cannot surmount the impediment of the deed, which the plaintiff has accepted from the defendant, and which contains a specific consideration in money, and the quantity of acres conveyed, with the usual covenant of seisin. Sitting in a court of law, I think I am bound to look to that deed, qsthe highest evidence of the final agreement of the parties, both as to the quantity of the land to be conveyed, and the price to be given for it. ff there be a mistake in the deed, the plaintiff must resort to a court of equity, which has had a long established jurisdiction in all sucli *511cases ; and where even parol evidence is held to be admissible to correct the mistake. (1 Vezey, 317. 3 Bro. C. C. 454. 5 Vesey, jun. 595, 596. 6 Vesey, jun. 333, 334.) The motion to set aside the nonsuit must be denied.

Van Ness, J. having formerly been concerned as counsel in the cause, gave no opinion.

Yates, J. not having heard the argument in the cause, gave no opinion.

Judgment of nonsuit.