Hancox v. Appleton , 96 N.Y.S. 1029 ( 1905 )

Bischoff, J.

The complaint alleged the making of an agreement to pay the plaintiff $250 for services, and, crediting the defendants with $125, demanded judgment for the balance; the answer set up the fact that the services were rendered, as broker, to effect the sale of defendants’ property, that the promise to pay $250 was made upon the plaintiff’s agreement to procure one Miller as the purchaser, who was to give his bond, secured by mortgage, for a part of the purchase money, and that the plaintiff did not perform this condition.

At the trial, the.plaintiff offered in evidence a writing, signed by one of the defendants, and endorsed upon a form of proposed contract of sale in which Miller was named as the purchaser as follows: “ I agree to pay J. W. Hancox a further commission of $125, at time and place of passing title to above described property.”

The defendants then endeavored to prove the oral agreement set up in their answer, imposing a condition that Miller should take title, but the evidence was excluded upon the ground that the writing contained the entire contract and could not be enlarged or altered by parol. This ruling, in our view, was error which calls for a new trial.

The writing itself referred to the proposed contract of sale upon which it was written, and, whether the promise, to pay commissions “ at time and place of passing title,” depended upon a purchase by the person named as the proposed vendee, is a matter which this writing, while suggesting, did not completely express. Thus it was proper to show the circumstances surrounding the agreement, in order to identify this condition, consistently with the writing, as one which was intended to attach to the words “ passing title,” in accordanee with the agreement of the parties; and the actual understanding, so far, was provable by parol, for the writing was incomplete and by no means necessarily expressive of the whole agreement. Browne Parol Ev., § 50 and cases cited.

Scott and MacLean, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.