Storer v. Ripley

282 A.D. 950 | N.Y. App. Div. | 1953

Appeal by defendants from a judgment declaring that there was a valid agreement between plaintiff and defendant Ripley providing, among other things, that plaintiff and one Colwell should be directors of Believe It Or Not, Inc., as long as the plaintiff or one Millar owned stock in the corporation, and granting plaintiff injunctive and other relief. Judgment unanimously affirmed, with costs. In our opinion, there was sufficient evidence of the oral agreement found by the court. A subsequent written contract did not embody the entire bargain of the parties, and proof of the oral agreement was not barred by the parol evidence rule or by a “merger” clause in the written contract. (Cf. Laskey V. Bubel Corp., 303 N. Y. 69, 71-72, and 3 Williston on Contracts [Rev. ed., 1936], § 811A, notes 1, 2, pp. 2282-2283.) The agreement was not one which, by its terms, did not admit of performance within one year. The stock, the ownership of which measured the obligation to continue the directors in office, could have been disposed of within one year; and the contract was thus possible of performance within that period and so not within the proscription of the Statute of Frauds (Personal Property Law, § 31, subd. 1). (Cf. Nat Nal Service Stations v. Wolf, 304 N. Y. 332.) Defendants’ other contentions have been examined and in our opinion are without merit. Present — Nolan, p. J., Adel, Wenzel, Schmidt and Beldoek, JJ. [See post, p. 1061.]