286 A.D. 483 | N.Y. App. Div. | 1955
In this action brought in fraud, the plaintiff alleges that he was employed under a written contract as a salesman for the defendant; that thereafter he was asked to take the position of field sales manager, and that a written
The plaintiff has failed to make out a case of fraud. The evidence must be clear and convincing and the inference of fraud unequivocal. In Central Sav. Bank in City of N. Y. v. Amted Realty Co. (274 App. Div. 392, 393-394) Cohn, J., quoted the language of Adams v. Gillig (199 N. Y. 314, 318) where the court said: “ ‘ It may be assumed that promises of future action that are a part of the contract between the parties, to be binding upon them, must be stated in the contract. An oral restrictive covenant, or any oral promise to do or refrain from doing something affecting the property about which a written contract is made and executed between the parties, will not be enforced, not because the parties should not fulfill their promises and their legal and moral obligations, but because the covenants and agreements being promissory and contractual in their nature and a part of, or collateral to a principal contract, the entire agreement between the parties must be deemed to have been merged in the writing. The value of a writing would be very seriously impaired if the rule mentioned in regard to including the entire agreement in such writing is not enforced. ’ ’ ’
The judgment should, therefore, be reversed and the complaint dismissed.
Cohn, J. P., Bastow, Botein, Rabin and Cox, JJ., concur.
Judgment unanimously reversed, with costs to the appellants, and judgment is directed to be entered in favor of the defendants dismissing the complaint herein, with costs.