220 A.D. 191 | N.Y. App. Div. | 1927
Plaintiff appeals from a judgment dismissing his complaint. He testified to an oral agreement by which he was to
In Grierson v. Mason (60 N. Y. 394, 397) Miller, J., said: “ The object of the testimony was to show that the instrument was executed for a specific purpose, and that purpose being accomplished, was of no effect in changing the contract previously made with the defendant. I think that it was competent evidence for this purpose. The defendant had made out a contract. The plaintiff proved an instrument which altered the contract, and the defendant had a right to prove that the instrument introduced was not intended as an alteration of the contract, but with a view of accomplishing a particular purpose. Such evidence was not given to change the written contract by parol, but to establish that such contract had no force, efficacy or effect. That, it was not intended
In Union Trust Co. v. Whiton (97 N. Y. 172, 177) Miller, J., said: “ Parol evidence may also be introduced to show that even when a writing purports to be a contract it may not be such. (Grierson v. Mason, 60 N. Y. 397.) ”
In Baird v. Baird (145 N. Y. 659, 664) it is said: “ Parol evidence may also be given to show that a writing, purporting to be a contract or obligation, was not in fact intended or delivered as such by the parties. (Grierson v. Mason, 60 N. Y. 394.) ”
Even in Thomas v. Scutt (127 N. Y. 133,137,138) Vann, J., citing Grierson v. Mason, says: “ Such proof does not recognize the contract as ever existing as a valid agreement and is received from the necessity of the case to show that that which appears to be, is not and never was a contract.”
Grierson v. Mason (supra) was also cited with approval by Collin, J., in Grannis v. Stevens (216 N. Y. 583, 587), where he said: “ The manual transfer of an instrument, in form a complete contract, does not, however, bar parol evidence that it is not to become binding until the happening of some condition precedent resting in parol, or that the transfer is for a special purpose. * * * It is a question of fact whether any written agreement, though in possession of the obligee, has been delivered by the obligor as a binding agreement, or whether any delivery that has been made is conditional only.”
The case of Nightingale v. J. H. & C. K. Eagle, Inc. (141 App. Div. 386; revd. on the dissenting opinion of Ingraham, P. J., in 205 N. Y. 628) is clearly distinguishable. There the parol agreement was void under the Statute of Frauds. Plaintiff, therefore, had to recover either on the subsequent written contract or on a claim for quantum meruit. Since his counsel waived the latter claim on the trial, plaintiff had to recover on the written contract, if at all.
The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Dowling, P. J., Merrell, Finch and McAvoy, JJ., concur.
Judgment reversed and new trial ordered, with costs to the appellant to abide the event.