Hand v. Miller

This action is brought by the plaintiff, as an assignee of one Elwood S. Hand, to recover upon three contracts for advertising in a book describing the Hotel Majestic, made by the assignor with the defendants Miller and Ellis. Each contract is set out in a separate cause of action in the complaint. They are all alike, and each purports to bind the defendants to pay $285 for the insertion of each advertisement, payable in work other than for the Hotel Majestic.

The answer to the first cause of action averred in the complaint is peculiar in form. It first denies knowledge or information sufficient to form a belief as to that clause of the complaint in which the contract appears, and which avers its execution and delivery by the defendants to the plaintiff’s assignor. This denial is followed in the same paragraph by an admission that the defendants signed a certain paper or memoranda, but denies any knowledge or information sufficient to form a belief as to whether the paper set forth in the complaint is the one which the defendants signed. The answer to the second and third causes of action are denials of the contracts therein set forth. For a third and separate defense, the answer avers that the contract was obtained by false and fraudulent representations upon the part of the plaintiff’s assignor. For a fourth defense it avers that said assignor never performed the contract upon his part. These averments constitute the material issues presented by the pleadings. There is no defense, in terms, set up in the answer that the whole of the agreement of the parties was not reduced to writing, and no such issue was presented, unless it be contained in the second paragraph of the answer to the first cause of action, which is in form as hereinbefore stated. Upon the trial it was admitted by the defendant Miller, who alone answered, that he signed all three of the contracts, but he testified that in fact there was but one contract for advertising, and that the other two were mere duplicates, and that he executed them as such. The defense proceeded upon this theory, and evidence was given in its support tending to establish that the contract which was admittedly signed did not contain the whole of the agreement between the par

We think that, as bearing upon this particular question, the objection was good. The second paragraph of the answer, to which we have heretofore adverted, raises no issue as to the execution and delivery of the contract which is averred in the first cause of action set out in the complaint. The first sentence of this answer would undoubtedly have been good as a denial, but it is immediately followed by an admission which wholly destroys its effect as a denial, and the subsequent averment, if it had any fqrce, is simply a statement regarding the paper which the defendant signed, inconsistent with the averment of the complaint, and, taking the whole paragraph together, it is not a denial of the execution of the contract set out in the complaint to which it refers. Marston v. Swett, 66 N. Y. 206 ; Fleischmann v. Stern, 90 N. Y. 110 ; Berry v. Rowley, 11 App. Div. 396 , 42 N. Y. Supp. 368 ; Wesson v. Judd, 1 Abb. Prac. 254 .

2To issue, therefore, having been raised as to the execution and delivery of the contract averred in the complaint, evidence was inadmissible to change and vary its terms, unless it appeared upon its face to be an incomplete contract, and, if it so appeared, parol evidence could only be given consistent with, and not contradictory to, its terms. Thomas v. Scutt, 127 N. Y. 133 , 27 N. E. 961 . An examination of the contract, however, shows it to be complete in all its terms. If there were doubt upon this point, the testimony of the defendant Miller is clear, to the effect that when he signed it its terms and conditions were talked over, and some parts of it were changed at the suggestion of the defendant, and after the changes were made they were signed and delivered. The fact that there was struck out of the contract, if it be a fact, the words that it contained the whole agreement between the parties, did not have the effect of making it an incomplete contract, or reserve the right in the defendants to change or vary its terms by parol evidence. All the negotiations between the parties resulting in the contract had then been had, and it is elementary law that, where the parties have reduced the terms of their negotiations to writing, it is to be assumed that the written agreement constitutes the whole of the contract. And if a party is thereafter at liberty to change or vary it by parol testimony, for no other reason than that it did not contain the whole of the agreement, and that such words were stricken out of the contract before its execution, there would be no virility left in the rule that written instruments may not be changed or modified by parol testimony. It was therefore improper in this case to receive parol testimony for the purposes of varying the written contract which was admittedly executed and delivered.

Although we reach this conclusion, it by no means follo'ws that

There was, however, reversible error committed in the ruling of the court upon the question of character. The defendant called several witnesses, who testified that the reputation for truth and veracity of the assignor, who was a witness for the plaintiff, was bad. The plaintiff called several witnesses in rebuttal of this testimony, who testified that they had known the assignor for from 8 to 15 years, had had business relations with him, and that his (reputation for truth and veracity was good. Upon cross-examination, these witnesses testified that they had never heard any one say anything about the assignor’s character. This fact appearing, the defendant made a motion' to strike out such testimony, the ..same was granted, and the testimony stricken out. All of these 'witnesses had testified that they were acquainted, generally, in the .community where the assignor lived, and one of them, who was ■the postmaster of the town, that he knew everybody in the town. "The ruling undoubtedly proceeded upon the ground that the witrnesses had no knowledge of the assignor’s character, because they lhad never heard it discussed. It is evident that such ruling can-mot be sustained. In effect, it is to hold that if a man’s character in the community is so high and pure that it is never the subject pf discussion, but is always assumed to be good, he is powerless

This ruling was therefore error, for which the judgment should be reversed, and a néw trial granted, with costs to the appellant to abide the event. All concur.