Hope v. Smith — 35 N.Y. Super. Ct. 458

Majority

p. 458

ANTHONY S. HOPE, Plaintiff and Appellant, v. ALBERT J. SMITH and PETER BALEN, Jr., impleaded with STEPHEN L. BARDOSH and JAMES H. PROVOST (said SMITH, BALEN, BARDOSH, and PROVOST composing the Firm of SMITH, BARDOSH & Co.), Defendants, SMITH and BALEN, Respondents.

Headnote

I. Written Instruments. —Parol Evidence.

1. When the general rule which excludes conversations, negotiations, and parol agreements, prior to the execution of a written agreement relating to and springing out of such conversations, negotiations, etc., does not apply.

1. When the original contract, although verbal, yet was entire, and only a part of it was reduced to writing, here the part not so reduced can be proved by parol.

2. When the consideration does not appear in the writing, here the consideration may be proved by parol.

3. When there is a consideration further than that expressed in the writing, here the further consideration may be proved by parol.

2. Application of these principles.

1. When there is an endorsement on a lease signed by the lessees only as follows:

"March 30,1869.

“It is hereby agreed between the subscribers that the period of the lease (within mentioned) which is unexpired on the first day of May, 1869, is hereby cancelled.”

Held that oral proof that the said written instrument of cancellation was executed under a parol agreement that the lessees would surrender the premises, and the lessor relet them, and the lessees should be excused from the quarter’s rent ending- May 1st, 1869, was admissible.

Before Barbour, Ch. J., Curtis and Sedgwick, JJ.

Decided April 5, 1873.

Appeal from an order denying a motion for a new trial.

In tkis case tke jury rendered a verdict for tke defend

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ants. Thereupon plaintiff moved at Trial Term before the judge, before whom the trial was had, to set aside the verdict and for a new trial on his minutes upon exceptions. The motion was denied. From the order entered denying the motion plaintiff appeals.

The facts sufficiently appear in the opinion.

A. Ford, for appellant.

T. C. Campbell, for respondents.

This action was brought upon a written agreement or lease, made by plaintiff to Albert J. Smith, Stephen L. Bardosh, Peter Balen, Jr., and Charles H. Provost (composing the firm of Smith, Bardosh & Co.), to recover rent claimed by the plaintiff to be payable, according to the terms of the lease, on the first of May, 1869, for the preceding quarter. Upon the trial the following endorsement upon the lease was read in evidence :

“ Hew Yobk, March 30ih, 1869.

“ It is hereby agreed between the subscribers that the “period of the lease (within mentioned), which is unex“pired on the first day of May, 1869, is hereby can-celled.

“Smith, Bardosh & Co.”

One of the defendants was permitted by the court, against the plaintiff’s objection, to testify that a day or two before the above endorsement was signed, it was orally agreeed between him and the plaintiff that the defendants would surrender the premises and the plaintiff relet them, and that the defendants should be excused from that quarter’s rent. The plaintiff’s counsel excepted to the ruling, which admitted that evidence of an oral agreement prior to the execution of the endorsement, and claims that whatever oral agreement

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there may have been before such endorsement in regard to the subject-matter thereof, must be considered as merged in the written instrument; and the point of law thus raised, as well as in different forms upon the trial, is the only one in the case which requires much consideration here.

The general rule, which excludes conversations, negotiations, and parol agreements, prior to the execution of a written agreement covering the subject-matter of such negotiations, etc., does not apply in cases where-the original contract was verbal and entire, and only a part of it was reduced to writing (1 Greenl. Ev. § 284 a), nor does it exclude proof of consideration where that does not appear in the writing, nor evidence of further consideration than is expressed in the instrument (Ib. 304). The endorsement in this case was signed by the lessees alone, and expresses no consideration whatever, but was probably intended to be, as in effect it was, merely a surrender of the term, and was put in writing because the agreement between the parties required a valid surrender to be made, and the statute required that to be done in writing (2 R. S. 134, § 6). The writing, therefore, did not constitute the whole agreement, nor, indeed, of itself, any part of it, but it was merely a performance on the part of the lessees of one of the terms of the real agreement. The evidence, therefore, was properly admitted. The order appealed from should be affirmed, with costs.