Strong v. Waters — 61 N.Y. St. Rep. 807

Majority

p. 807

Barzell M. Strong, App’lt, v. Cyrus Waters, Resp’t.

(Supreme Court, General Term, Third Department,

Filed July 14, 1894.)

Headnote

Evidence—Parol.

Parol evidence is inadmissible to vary a written contract, where it is not offered to establish fraud or mutual mistake.

Appeal from a judgment in favor of defendant.

S. A. Beman (Royal Corbin, of counsel), for app’lt; Shedden & Booth (L. L. Shedden, of counsel), for resp’t.

—In the month of June, 1887, the plaintiff and defendant entered into a contract in writing, of which the following is a copy:

“This agreement made and entered into between B. M. Strong, of Evans Mills, H. Y., as party of the first part, and Cyrus Waters, of Champlain, party of the second part, witnesseth : Party of the first part agrees to drill a well for party of the second part at $2.50 a foot, and furnish pipe for pump without charge, and is to be relieved from all responsibility when he stops drilling. In case of a flowing well, to be two dollars per foot. Party oí the second part agrees to pay party of the first part $2.50 for each and every foot so drilled,' and purchase a pump and cylinder of party of the first part at Gould’s listed prices, and pay for all casing of well at $1.00 per foot; to furnish proper wood and water for engine while drilling, and as required, and board two men while drilling said well. B. M. Strong, per J. B. Bort.

“Cyrus Waters."

Under this contract the plaintiff claims that he drilled to the depth of about thirty feet, when he struck water, but continued to drill to the depth of ninety feet, at the request of the defendant The plaintiff also claims that he furnished to the defendant twenty-one feet of casing or tubing at one dollar per foot; a pump of the value of eleven dollars; and a cylinder of the value of eight dollars; merchandise of the value of $100. There appears to be no substantial controversy over the amount of work performed or material furnished by the plaintiff in and about this work. But the defendant sets up in his answer various defenses, among which was an allegation of fraud and mistake in making

p. 808

the written contract; also, a breach of failure to perforin the contract by the plaintiff. Under this answer the defendant proves, under the objection of the plaintiff, a paroi contemporaneous agreement or contract greatly at variance with the written contract upon which the action was brought. There was no claim that the paroi evidence so offered and received on the part of the defendant proved, or tended to prove, a mutual mistake by the parties to the written contract, so as to make it competent for the purpose of a reformation of the written agreement. ¡Nor did it prove, or tend to prove, any fraud by the defendant in procuring the written agreement to be made. . The only possible effect of the evidence was to modify or add to the written contract important provisions by a paroi contemporaneous agreement. It needs no citation of authorities to show that that cannot be done. We think the learned referee erred in the admission of that evidence, and that such error may have affected his determination of the action. The judgment should, for that reason, be reversed.

Judgment reversed, the referee discharged, and a new trial ordered ; costs to abide the event.

All concur.