James A. Haggerty Lumber & Mill Work, Inc. v. Thompson-Starrett Construction Co. , 22 A.D.2d 509 ( 1965 )

Steuer, J.

The action is for the contract price of milled woodwork manufactured by plaintiff arid delivered by it to defendant. No question of the delivery and receipt of this material is raised. The material was manufactured and delivered pursuant to 29 written orders which specified fixed prices. Defendant claims that the orders were hurriedly given and that there was no deliberate attention to the prices. Later on defendant claims that it discovered that the prices were excessive and, upon calling this to the attention of plaintiff, the latter agreed to renegotiate the prices.

Concededly, a consideration would be necessary to support such an agreement. Defendant asserts two such considerations. One was part payment on the deliveries already made. However, this was merely the performance of an act which defendant was in any event obligated to perform and cannot constitute a consideration; “ ‘ neither the promise to do a thing, nor the actual doing of it, will be a good consideration if it is a thing which the party is bound to do by the general law, or by a subsisting contract with the other party. ’ ” (Pollock, Contracts, p. 161, quoted in Vanderbilt v. Schreyer, 91 N. Y. 392, 401; Buker v. Mt. Vernon Contr. Corp., 1 A D 2d 735.) The second alleged consideration is the giving of additional orders. This could not be a provable consideration for renegotiating either the orders given prior or subsequent to the alleged agreement — as to the prior orders, because it was an additional consideration to that set out in the written agreement and is not provable by parol (Sturmdorf v. Saunders, 117 App. Div. 762, affd. 190 N. Y. 555); as to the subsequent orders, it would constitute a variance of the terms by means of a collateral agreement. A parol collateral agreement which contradicts the terms of the written agreement is not admissible (Mitchill v. Lath, 247 N. Y. 377). .

Defendant also claims a failure to perform in that the mill-work was not properly marked, which caused delay in the unloading and the like. No complaint was ever made on this score, nor is it a term'of the contract. Nor does defendant deny that it instructed the architects to give on-the-spot approval or disapproval of all material delivered.

The defense that defendant was defrauded because when the plaintiff agreed to renegotiate it had no intention of so doing requires no discussion.

Plaintiff concedes that an item of $2,000 set out in the answer is a valid set-off and this amount is deducted from its claim.

The order denying summary judgment should be reversed on the law and the motion granted directing the 'Clerk to enter judgment for the plaintiff for $92,130 with appropriate interest and costs and the costs of this appeal.