240 A.D. 543 | N.Y. App. Div. | 1934
The plaintiff has appealed from a judgment dismissing his complaint on the pleadings and counsel’s opening. After the jury was impaneled, the defendant was permitted by the court to amend his answer by setting forth the Statute of Frauds as a defense, and, in addition thereto, to plead the illegality of the transaction upon which plaintiff’s claim was based. An application by the plaintiff, on the other hand, to amend his bill of particulars so as to indicate that the memorandum which was signed by the defendant, wherein he promised to pay plaintiff a certain amount alleged to be due, contained the statement that it was to be paid in July, 1931, was denied. In view of the leeway which was given to the defendant in amending his answer, we believe that the same consideration should have been shown to the plaintiff, since it appeared that the defendant had examined him before trial and, as a result, was aware of the fact that plaintiff intended to give testimony in accordance with the proposed amendment.
Before discussing the facts, it might be well to quote the statement of the trial court, delivered at the time the complaint was dismissed:
“ The Court: The plaintiff cannot recover without proving the memorandum required by Section 31, Subsection 5 of the Personal Property Law. He admits his inability to produce such a document and offers oral testimony to the effect that a paper was drawn by the defendant and initialled by the plaintiff and defendant but not delivered, reading as follows:
“ Due David Posner................................ S7,000 Account Jerome Strouse claim..................... 500 Check on account................................ 500 Balance............................... S6,000 ’
“ Signed ‘ E. F. R.’ and under that, ‘ D. R. P.’ ”
It is not disputed that in order to take this claim out of the Statute of Frauds it was necessary that the promise be reduced to writing and signed by the party to be charged. In his brief the appellant states: The “ entire case hangs on this paper and on what happened to it.”
While Read v. Price (supra) dealt primarily with the Statute of Limitations, Cozens-Hardt, M. R., made reference to the Statute of Frauds. The following quotation from his opinion shows the logic of the rule: “You may prove the existence of the writing by the ordinary law of evidence, and when the writing is lost, and the proof of the loss is satisfactory to the Court, you may give secondary evidence of the contents of the lost document, just as in cases where writing is required under the Statute of Frauds you can always prove the existence of the writing by parol evidence, if proof is given of the loss of the written document.”
Mr. Reed in his work on the Statute of Frauds, volume 1, section 326, considers the subject very carefully. Some of the authorities referred to by him are indeed helpful. The following quotation from Blackburn v. Blackburn (8 Ohio, 81) is apt: “ It is urged further by counsel for defendants, that by receiving parol evidence, to prove the contents of a deed, the statute of frauds is violated, or at least evaded. But in this, it seems to the court, counsel are mistaken. Section 4 of this statute, 29 Ohio L. 218, provides that no interest in land shall be assigned or granted, unless it be by deed or note in writing, etc. If the proposition in this case had been to prove a parol grant of the premises in controversy, it would have been within the statute. But it was not so. The proposition was to prove that a grant had been made in writing, and in conformity with the law regulating the conveyance of real estate. True, the instrument of writing evincing this grant was not produced; nor could it be, because it was lost, and from necessity
“ It has been further objected in argument, that by adhering to the principle decided upon the circuit there is danger of opening a wide door to perjury. The force of this objection is felt by the court; we always regret to be under the necessity of receiving parol evidence of any written instrument, and not unfrequently, in such cases, entertain suspicions that the party claiming under such proof, establishes a more favorable case than be would were the instrument itself produced. But it is not within our province to disregard a rule of law, because, by possibility, it may be abused. All we can do is to guard as far as possible against such abuses.”
A Pennsylvania case, Irwin v. Irwin (34 Penn. St. 525, at p. 529) is also in point, as will appear from the following excerpt from the opinion: “ The note in writing, which is sufficient to take a parol title out of the Statute of Frauds and Perjuries, must be proved like any other private instrument. If it cannot be produced, it must be shown first, to have existed; next, that it is lost, which may be inferred from diligent but unsuccessful search for it in the place where, if still existing, it ought to be found; and then, its contents may be proved by any person having knowledge of them, with the same effect as the paper itself would have, if produced.”
Let us assume, therefore, that plaintiff would have been in a position to prove by secondary evidence that after he initialed the memorandum he returned it to defendant. We then come to a consideration of the question raised by respondent as to its sufficiency. A fair construction of the words used would indicate that the respondent owed appellant the sum of $6,000 which was to be paid in July, 1931.
In Buehler v. Pierce (175 N. Y. 264, at pp. 266, 267), Judge Cullen said: “The term ‘due’ is defined by Bouvier (1 Law Diet. 621) to be ‘ what ought to be paid; what may be demanded; ’ by Burrill (1 Law Diet. 404) as ‘ that which one owes; that which one ought to pay, or do to, or for another.’ The definition given in Webster’s Dictionary is: ‘ Owed; that ought to be paid or done to another. That is due from me to another; which contract justice or propriety requires me to pay and which he may justly claim as his right. That which law or justice requires to be paid or done.’ ” (See, also, Seymour v. Warren, 179 N. Y. 1).
We next consider the question as to the legality of the contract entered into between the parties. The original promise to pay by this defendant was based upon plaintiff’s agreement to refrain from filing a claim in the bankruptcy proceedings. The purpose was to enable the defendant and his partners to enter into a com
We repeat, lest there be any misunderstanding, that we assumed the facts which counsel for the plaintiff stated in his opening to be true solely for the purpose of disposing of the questions contained in the record on this appeal.
The judgment appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event.
Finch, P. J., Martin, O’Malley and Townley, JJ., concur.
Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.