Barker v. . Bradley , 42 N.Y. 316 ( 1870 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] While the evidence in this case is not as satisfactory as could be wished, yet, under the rules applicable to appeals in this court, it must be considered as established that, in the fall of 1864, Benjamin Chamberlain agreed to pay the plaintiff $2,000 for his interest in the property of the "Luna Lumber Company," and that subsequently the testator, Samuel W. Bradley, upon a consideration passing between him and Chamberlain, promised to pay the $2,000 to the plaintiff. Upon such a state of facts, I think there can be no doubt of the plaintiff's right to recover. (Barker v. Bucklin, 2 Denio, 45; Lawrence v. Fox,20 N Y, 268; Judson v. Gray, 17 How. Pr., 289). Upon the trial, it was claimed by the defendants, that the agreement between the plaintiff and Chamberlain was reduced to writing in the two instruments dated February 4, 1865; and, as nothing was said in these instrument about the payment of the $2,000, that it was incompetent for the plaintiff to prove by oral evidence the parol agreement to pay it, and they objected to such evidence. The referee overruled the objection and received the evidence, and the defendants excepted. In this I cannot perceive that the referee committed any error. The general rule is not controverted that parol evidence is inadmissible to vary, explain or contradict a written agreement. Where the parties have reduced an agreement to writing, the writing is supposed to contain all the agreement, and is the only evidence of it; and all prior or contemporaneous declarations and negotiations between the parties are excluded as evidence of the agreement, or any part of it. But here the agreement was not reduced to writing. It was intended by the parties to rest in parol, and the written instruments were subsequently executed in part execution of the parol agreement, and not for the purpose of putting that agreement in writing. It is well settled, that a written instrument, thus executed, does not supersede a prior parol agreement. (Renard v. Sampson,12 N Y, 561; Thomas v. Dickinson, 2 Kernan, 364; Hutchins v.Hubbard, 34 N.Y., 24; Bowen v. Bell, 20 John., 340;Johnson v. Hathorn, 3 Keys, 126; McCullough v. Girard, 4 Wn. C.C.R., 289; Mowatt v. Ld.Londesborough, 3 Ellis. B., 307.) It is clear that the nominal consideration of one dollar was inserted in each instrument, not for the purpose of expressing the true consideration, but merely to make the instrument operative; and the agreement to pay the true consideration was left in parol. But if these said instruments had been executed at the time of the parol agreement, and are to be regarded as containing the agreement between the parties in the sense claimed by the defendants, yet neither party would be concluded by the consideration expressed. In reference to all instruments, acknowledging the receipt of a consideration, in the form contained in these instruments, it is now well settled, that it is competent by parol to show that no consideration was in fact paid or received, or that the consideration was greater or less than, or different from, the one expressed. This may be done for every purpose, except to impeach or destroy the instrument. The amount or kind of consideration is not considered an essential part of the contract, and is open to contradiction or explanation, like a common receipt. (Frink v. Green, 5 Barb., 456; Bingham v.Weiderwax, 1 N.Y., 509; Murray v. Smith, 1 Duer, 412;McCrea v. Purmort, 16 Wend., 460.) Within these cases, no rule of law was violated by the admission of the parol evidence, to show that Chamberlain agreed to pay the plaintiff $2,000, instead of the one dollar, the receipt of which was acknowledged.

I therefore, reach the conclusion, that the judgment should be affirmed.