Love v. Hamel

69 N.Y.S. 251 | N.Y. App. Div. | 1901

Chase, J.:

The trial court allowed the plaintiffs to give evidence of the •alleged oral agreement preceding and accompanying the execution of the written agreement, subject to the defendant’s objection that "the same was inadmissible to vary, modify or extend the written instrument. The writing executed-by the parties was a formal one, and it appears on its face to be a complete contract, expressing the full agreement by and between the parties. The plaintiffs ■ contend that the oral agreement in regard to maintaining another lunch wagon is a collateral and independent agreement, and that parol evidence was properly received in regard to the same. In the case of Costello v. Eddy (34 N. Y. St. Repr. 565) the court, in discussing a case involving substantially the same facts presented in this case, uses the following language: “Adopting the plaintiff’s theory of the contract, it was to sell the business, the stock and the good will of the defendant, and as to him. the exclusive right of enjoyment and monopoly of the business of carrying on a bakery in Saratoga, in consideration of all of which the plaintiff agreed to pay $2,000. Now suppose that in drawing the contract, all other articles, rights and privileges intended to be transferred by the parties had been specified in the contract, except the horses and harness, could the plaintiff in an action at law for damages for a failure .to deliver the horses and harness prove, notwithstanding the writing, that they were embraced in the sale and paid for by the $2,000 ? We think not.” The decision in the Costello v. Eddy case was affirmed by the Court of Appeals, the court adopting the opinion from which the above quotation is taken as the opinion of that court. (128 N. Y. 650.)

The statements made by the parties to this action, and advice of -counsel given when the writing was being prepared, shows that the parol agreement was considered by all as one entire agreement, all ■of which to be binding upon the parties should be incorporated into the written agreement. The parol evidence preceding and accompanying the execution of the written agreement was improperly received. Judgment reversed. New trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment and order reversed and new trial granted, with costs "to appellant to abide event.