79 N.J.L. 418 | N.J. | 1910
The opinion of the court was delivered by
The reasons upon which it is sought to have the rule made absolute are that the charge of the court was erroneoxrs in law, and that the verdict was contrary to the weight of the evidence. The complaint made against the charge relates to that part of it which submits to the jury the question whether a notice, alleged to have been given by the defendant to terminate the contract at the end of six months thereafter, was given according to the terms of the contract. The defendant’s testimony on this point shows that such a notice was prepared and mailed to the plaintiff in an envelope properly addressed and postpaid. The testimony of the plaintiff was that no such letter ever reached him. On this point the trial judge instructed the jury as follows: "He describes the practice of the defendant as to the writing of letters and as to their mailing, and they say that the letter has never come back. Consequently that is evidence, if it is
The other reason urged in support of this rule is that the jury found, contrary to the weight of the evidence, that the contract expressed the entire agreement between the parties, because there was uncontradicted evidence showing an oral contemporaneous contract between the parties to the written instrument, and in part consideration thereof, which related to a subject-matter entirely distinct and separate from that contained in the writing. The claim of the defendant is that at the time the written agreement was signed, and in part consideration for the payment of $125 monthly during the life of such contract, there was made by the same persons an oral agreement, the terms of which were that plaintiffs intestate would furnish plans under which the machines covered by the letters patent mentioned in the written contract were
Another witness, Mr. Lovegrove, was present during the negotiations leading to the contract, and testifies that he had a conversation with the deceased on that day, whether before or after the contract was executed does not clearly appear, in which deceased “informed me that an agreement had been arrived at between him and Andrew Brown, in reference to the shingle planing machine; that he should complete the drawings that he had partially finished, and deliver the same to Andrew Brown. * * * He said he was to deliver the drawings to Andrew Brown, and superintend the building of the machines.”
Mr. Andrew J. Brown testifies that after the contract was signed,- Mr. Kruger, the deceased, said to him: “ ‘I have made a contract with A. B., meaning Andrew Brown, about the shingle planer patents, and it is entirely satisfactory.’ I said ‘What agreement did you make?’ He said, ‘I am to be paid $125 per month; I am to make and furnish Mr. Brown plans and working drawings for two improved planing machines, and I am to supervise the building of the new machine. I am to receive $5 per day expenses if they are built in Elizabeth City, and $10 per day expenses if they are built in Williamsport, or any other place outside of Elizabeth Citj: I said, ‘When do 3ou commence to make your drawings ?’ He said, ‘I am going to begin at once.’ * * * On several occasions, when I called on him at his room, he was working on his drawings— he was working in the corner of the room at a table, and the drawings were made on heavy drawing paper.”
Erom this evidence, if we assume that the oral agreement has been established, it would appear that although the subject-matter was considered, or perhaps agreed to, during the negotiations, it was not embodied in the writing as the contract finally settled. The written instrument is complete in all that it undertakes to deal with, and is an agreement that the defendant might build and use shingle planing machines in certain states of the United States upon payment of $125
Where a contract purports to include the final result of the negotiations of the parties, oral testimony will not be admitted of prior or contemporaneous promises on a subject which is so much a “part and parcel of the transaction itself, without the adjustment of which the parties cannot be considered as having finished their negotiations and finally concluded a contract.” Naumberg v. Young, 15 Vroom 331, 342.
This renders it unnecessary to consider the question whether if the testimony was admissible, the finding of the jury that no such oral contract was made is contrary to the weight of the evidence, but in view of the evidence that plaintiff’s intestate had refused to sign a previously prepared contract containing what, it is alleged, he orally agreed to; that it is testified that prior to the signing of the written agreement this important matter was discussed and made a part of the result of the negotiations, hut not included in the writing prepared by the attorney of the defendant at the very time it was said to have been agreed to as the final conclusion of the parties, and the character of the evidence offered by defendant in support of his claim, which he was hound to prove by a preponder
The rule to show cause is discharged.