78 N.Y.S. 897 | N.Y. Sup. Ct. | 1902
When the defendants had put in evidence the written appraisal agreement and the award thereunder, and proved payment of such award, viz., $4,156.58, to the mortgagee, i. e.,
1. The oral evidence, received under objection and exception by the- defendants, varied the written appraisal agreement, which was that the appraisers should appraise and ascertain the actual loss. Such agreement was complete on its face and covered the whole subject. If the understanding was that the award had to be at least $6,000 it needed to be in the written agreement. It was in no sense collateral; it was essentially of the subject matter of the appraisal. The oral evidence was therefore incompetent and must be disregarded (Wilson v. Deen, 74 N. Y. 531).
2. The oral evidence was not sufficient to show fraud or mutual mistake by the defendant companies. There was no mistake at all about the written agreement; the plaintiffs concededly knew its contents thoroughly. Fraud cannot be predicated upon the promissory statement of the agent of the companies that the appraisal would be confined to whether the loss was more than $6,000 (Ex parte Fisher, 18 Wend. 608).
3. There was no issue of fraud or mistake on the pleadings. The complaint did not seek to have the arbitration agreement annulled ; it was simply a complaint in a common law action to re
4. Finally, in order to maintain this action, which is one at law, the plaintiffs had first to rescind and restore the amount they had received; and to maintain a suit in ' equity to set aside the written appraisal agreement and the award thereunder they would have to offer in their complaint to restore the amount received, and also tender it to the defendant companies in court at the opening of the trial. That the amount of the award was not paid directly to the plaintiffs, but to their mortgagee in reduction of the mortgage, does not make a difference. It was paid for their account and benefit. They cannot retain it and take the chance of getting more. They' must first restore it, and take the chance of getting less (Gould v. Cayuga Co. Natl. Bank, 86 N. Y. 75; 99 N. Y. 333; Remington Paper Co. v. London Assurance Corporation, 12 App. Div. 218).
Judgment for the defendants.