Bopp v. Askins — 31 N.Y. St. Rep. 555

Majority

p. 555

Jacob Bopp, Resp’t, v. James D. Askins, App’lt.

(New York Common Pleas, General Term,

Filed June 2, 1890.)

Headnote

Evidence—Parol to vary written contract .

At the time of the execution of a contract for the sale of a house some, thing was said about carpets, etc., going with it, but no reference to such articles was made in the contract. In an action to recover the value of such articles evidence of such prior conversation was admitted. Held, error; and that if such articles were intended 10 go with the house plaintiff’s remedy was by action to reform the contract.

Appeal from a judgment rendered in the district court of the city of New York for the eleventh judicial district.

G. B. Smith, for app’lt; A. Lamont, for resp’t.

The action is to recover the value of certain chattels alleged by the plaintiff to have been conveyed by the defendant to him with a house and lot in West Forty-fourth street. The contract of sale was in writing, and at the time of its execution something was said about certain articles, as carpets, gas-fixtures, etc., but when the contract was drawn up, it entirely omitted any reference to these articles. Nevertheless on the trial plaintiff was allowed to give evidence as to the conversation before the signing of the contract, and judgment was rendered in plaintiff’s favor for their value. This, we think, was error. The rule was elementary. When the parties deliberately put their agreement in writing in such terms as import a legal obligation without any uncertainty as to the object or extent of such engagements, it is conclusively presumed that the whole engagement of the parties and the extent and manner of their undertaking was reduced to writing, and all oral testimony of particular conversations should be rejected. Greenl. on Ev., §§ 275, 276. From the evidence admitted it seems clear that the carpets, etc., were .intended to go with the house, but they were not included in the contract, and the plaintiff has mistaken his remedy, which should have been an action to reform the contract.

The judgment should, therefore, be reversed, with costs.

Larremore, Oh. J., concurs.