Knudtsen v. Remmel

Headnote

Knudtsen v. Remmel, 165 App. Div. 912 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 4, 1914, affirming a judgment in favor of

defendant entered upon a dismissal of the complaint by the court at a Trial Term. Plaintiff’s assignor and defendant entered into a written contract by which the former was to raise, money to develop and build a railroad to defendants’ coal mines. The contract provided that said assignor was “ to raise the money to pay for making the survey for said railroad which amount is to be taken from the sale of the bonds, but in case said bonds are not sold, the cost of said survey is to be repaid out of any funds that you or your associates, or the Arkansas Anthracite Coal Company may hereafter raise for the building of a railroad along said line.” The survey was made, but said assignor was unable to sell the bonds, and none of the defendants have ever raised any funds for the building of a railroad along said line, nor has any such railroad ever been built. In this action to recover the cost of making the survey plaintiff sought to show a subsequent oral contract by which defendants were obligated to pay therefor in any event. This evidence was stricken out on the ground that “the testimony does not only fail to explain or tend to show a collateral agreement, but it absolutely contradicts that proposition.”