102 N.Y.S. 1042 | N.Y. App. Div. | 1907
The plaintiff was the holder of a chattel mortgage conditioned for the payment of the sum of $4,500, which the mortgage recited was the sum in which the mortgagors were then indebted to the plaintiff. In consideration of the satisfaction of said mortgage the testator, of the defendant Saunders gave the plaintiff the written guaranty sued upon, in which he guaranteed the payment of the indebtedness then owing the plaintiff by the said mortgagors, which it was agreed should not exceed the sum of $3,000. The plaintiff claimed upon the trial that said mortgage indebtedness of $4,500 had been reduced to the sum of $2,499.86, which, with interest, was the amount recovered, and he sought to- establish the amount due by proving an account stated. The testimony respecting the alleged settlement of the accounts was disputed. At the close of the evidence the defendant moved to dismiss the complaint upon the merits. This motion was denied. The plaintiff then moved for a direction of a verdict, and after some discussion this motion was granted. The defendant did not request the submission of the case to the jury, and cannot now claim that that course should have been followed, (Dillon v. Cockcroft, 90 N. Y. 649.)
The defendant s'ought to show that at the time of giving the chattel mortgage the mortgagors did not owe the plaintiff as much as $4,500, and the exception to the exclusion of this evidence pre•sents the only question for consideration on this appeal.' The appellant’s argument is based upon the familiar rule that the consideration of an executory agreement is always open to explanation.
In De Mott v. Benson (4 Edw. Ch. 297) and Gardner v. Winterson (l7 App. Div. 630) it seems to have been assumed that the debt secured by the mortgage could- be shown to have been less than the amount stated, in the writing.
In addition to De Mott v. Benson (supra) the appellant cites Truscott v. King (6 N. Y. 147); Chester v. Bank of Kingston (16 id. 336); McKinster v. Babcock (26 id. 378); Youngs v. Wilson (27 id. 351); Barker v. Bradley (42 id. 316); Hebbard v. Haughian (70 id. 54); Baird v. Baird (145 id. 659); Emmett v. Penoyer (76 Hun, 551; 151 N. Y. 564). In Trusoott y. King and MoKinster v. Baboook (supra) the court dealt with the validity of a lien created by judgment and chattel mortgage respectively when attacked by other-lienors! - One .of the opinions reported' in. Youngs v. Wilson (supra) contains the following expression: "The real consideration of mortgages or deeds may be shown by parol though different from that expressed in the instrument.” That case, however, simply dealt with the validity of a mortgage conditioned to secure liabilities, the amount of which was not expressed. Barker v. Bradley (supra) dealt with a case in which the writing was given in. part, performance of a verbal agreement, and of course it was, held, com
The following cases are in point xOnly as showing the general application of the rule that the covenants of parties as expressed in their written contracts cannot be altered by parol proof: Van Bokkelen v. Taylor (62 N. Y. 105); Wilson v. Deen (74 id. 531); Eighmie v. Taylor (98 id. 288) ; Corse v. Peck (102 id. 513); Engelhorn v. Reitlinger (122 id. 76); House v. Walch (144 id. 418); Mead v. Dunlevie (174 id. 108).
In Ferris v. Hard (135 N. Y. 354, 363) it was held proper to show the real purpose of a mortgage, but Judge Peckham was bareful to point out that the evidence in that case did not change the liability of the party signing the mortgage. In Patchin v. Pierce (12 Wend. 61) it was held, Yelson, J., writing for the court,, that parol proof was not admissible to vary the sum specified in. the condition of the mortgage or to show that it exceeded the amount justly due the mortgagee. While that case was decided upon tire authority of earlier cases, some of which were subsequently overruled, I do
"While it does not clearly appear, I imagine the defendant in the case at bar wanted to show that the sum stated in the contract was an arbitrary sum, intended to cover the actual indebtedness- which had not then been computed, but the mortgage is a complete instrument, and unless the writing be treated merely as evidence of the contract and not as the contract itself, the general rule should be
Hirsohberg, P. J., Jenks, Hooker and Gaynor, JJ., concurred.
Judgment and order affirmed, with costs.