Delamater v. Bush — 63 Barb. 168

Majority

p. 168

Delamater vs. Bush.

Headnote

While in deeds, and other instruments, a party may, for certain purposes, prove the consideration to have been different from that expressed, such evidence is not admissible to contradict an agreement or covenant to pay a certain sum.

The principle that previous oral negotiations are merged in the writing, is also a reason why such proof should not be admitted; in the absence of fraud or mistake.

Where, in an action upon a written agreement, the oral evidence disclosed that the parties to the action, between themselves, fixed $450 as the sum to be paid by the defendant as rent for a stone quarry, untruly, for the purpose of obtaining from another person a portion of that sum; when, as between themselves, $250 was all that was to be paid by the defendant; Meld that if this was true, it was a fraud, which a party was not allowed to set up as a defense.

APPEAL by the plaintiff, from a judgment entered at a special term, on the verdict of a jury.

The action was upon an article of agreement containing a covenant to pay $450 rent, for a stone quarry. The balance claimed to be due was $200. On the trial, the jury found a verdict for the defendant.

1. Evidence was admitted, against objection and exception, that the sum to be paid was $250, and not $450, as mentioned in the agreement. I think this was error.

While in deeds, and other instruments, you may, for certain purposes, prove the consideration to be different from that expressed, it is not admissible to contradict an agreement or covenant , to pay a certain sum. The case was tried upon this theory, and by it a verdict given for the defendant.

So, too, that previous oral negotiations are merged in the writing, is a reason why such proof should not be admitted ; in the absence of fraud or mistake.

2. The oral evidence disclosed that the parties to the action, between themselves, fixed $450 as the sum to be paid, untruly, for the purpose of obtaining from another

p. 169

person a portion of that sum, when, as between themselves, $250 was all that was to be paid by the defendant. If this was true, it was a fraud, which a party is not allowed to set up in defense.

[Third Department, General Term, at Schenectady,

June 4, 1872.

The judgment should be set aside, and a new trial ordered; costs to abide the event.

Miller, P. Potter and Parker, Justices.]