31 N.Y.S. 753 | N.Y. Sup. Ct. | 1894
On a former review it was held that the action was not barred by the statute of limitations. 141 N. Y. 409, 36 N. E. 398. The only defense sought to be made available on -the last trial was that of alleged payment. The referee found that the defendants’ testator agreed to sell to the Union & Advertiser Company a piece of real estate in the city of Rochester for the sum of $25,000; that the plaintiff refused to sign the deed unless she was paid the sum of $2,500; that thereupon the company agreed with the testator to pay him the sum of $25,000 for the premises, and, in addition, to pay to the plaintiff the sum of $2,500 in consideration of the execution by her of the deed; that it was executed by both of them. The deed expressed a consideration of $27,500, and on March 31, 1882, was delivered to the grantee. The consideration, including such $2,500, was paid to Ashbel W. Riley, deceased. The defendants gave evidence (the question of its admissibility was reserved) tending to prove that afterwards the decedent desired to convey certain land in the city of Chicago, and, to induce his wife (the plaintiff) to join with him in the execution of the deed, he made with her the written agreement above set forth, demising to her certain premises in the city of Rochester, of date October 15, 1883, and that it was then understood between them' that her claim for the $2,500 in question was included as part of the consideration for the estate granted to her by that instrument. The evidence so taken was stricken out by the court on the plaintiff’s motion, on the ground that it tended to vary the terms of the written instrument, and exception was taken. It is the general rule that a written agreement, complete in itself, is presumed to embrace within
The question is whether or not parol evidence was admissible to prove that there was a further consideration than that mentioned in the written instrument. It was competent for that purpose, un-' less the consideration, as there expressed, rested in the covenant of the plaintiff. Since the case of McCrea v. Purmort, 16 Wend. 460, it has been the general rule in this state that the consideration clause of an instrument is open to explanation and modification by parol evidence for all purposes except to defeat the legal effect of the contract and to vary the terms of its stipulations. In that case the consideration expressed was money; and it was held that parol evidence was competent to prove that, instead of money, it was a quantity of iron at a stipulated price; and Mr. Justice Cowen there said that, although there be an acknowledgment of a particular consideration, it is not "an objection to other proof of other consistent considerations.” That case could have been disposed of upon the principle.that a receipt is only prima facie evidence of the payment acknowledged by it. In Murray v. Smith, 1 Duer, 412, the plaintiff had conveyed to the defendants’ testator certain land by deed expressing a pecuniary consideration, and subject to the one-half of a mortgage covering the premises. The acceptance of the deed did not create any covenant to pay the amount of the mortgage debt. The grantor having, by reason of his obligation to the mortgagee, been required to pay a deficiency arising from the foreclosure of the mortgage, brought action against the defendant to recover upon the alleged promise of his testator, as part of the consideration of the conveyance to him, to pay half the amount secured by the mortgage. The question was whether parol evidence was admissible for such purpose. In the opinion of the court, Mr. Justice Bosworth said: "The law must be deemed to be well settled in this state that either party is at liberty to show, for any purpose except to prevent its operating as a valid and effectual grant, that the consideration was different—greater or larger—than that named in it.” A similar case was presented in Taintor v. Hemmingway, 18 Hun, 458, 83 N. Y. 610, where, in holding that parol evidence was admissible to prove that the defendant, in taking the conveyance from the plaintiff, promised to pay a mortgage upon the premises, it was said, in substance, that the deed did not express the full consideration which the defendant, by the agreement, undertook to pay; that the contract to assume and pay the mortgage was independent of the contract expressed and embraced in the deed; and that "the verbal agreement was in addition thereto, and in no respect contradictory. It did not vary the terms of the contract contained in the deed, and was not merged