Majority
p. 82Sarah J. Pirsson et al., Resp’ts, v. Oliver M. Arkenburgh, App’lt. (New York Superior Court, General Term, Filed January 5, 1891.)
Headnote
Vendor and Purchaser—Moneys deposited to secure payment of ASSESSMENTS—EVIDENCE.On the execution of a contract of sale of real property to defendant, plaintiff’s assignor deposited a sum of money with a trust company to secure payment of an assessment which he was trying to reduce, and entered into a written agreement directing the payment of such sum to defendant if he paid the assessment, after a certain time. The assessment was reduced, and defendant paid the reduced amount. In an action for the balance of the deposit, Held, that evidence was inadmissible to add to or vary the terms of the written contract; that the contract was one of indemnity only, and that a direction of a verdict for plaintiff was proper.
Appeal from judgment entered in favor of the plaintiff upon a verdict directed at the trial, and from order denying defendants’ motion for a new trial.
Robert F. Little, for app’lt; Jno. Alex. Beall, for resp’ts.
The contract between the parties, by which provision was made for the payment or cancellation of the assessment, was deliberately reduced to writing, and duly executed. All prior conversations and negotiations then became merged in the written contract, and consequently the trial judge correctly held that parol evidence was inadmissible to add to or vary the terms
p. 83
of the written contract. The construction to be placed upon the contract, as evidenced by four written instruments, has been determined upon a former appeal. 57 N. Y. Super. Ct., 474 ; 29 N. Y. State Rep., 529. It was there held that the contract between the parties was one of indemnity, and not of forfeiture. The direction of the verdict now complained of was in accordance with that decision.
The judgment and order should be affirmed, with costs.
Sedgwick, Oh. J., and Ingraham, J., concur.