Mitchill v. Lath

• Citation: 247 N.Y. 377,160 N.E. 646
• Parties: MITCHILL v. LATH et al.
• Decision Date: 14 February 1928
• Court: New York Court of Appeals

247 N.Y. 377

160 N.E. 646

MITCHILL

v.LATH et al.

Court of Appeals of New York.

Feb. 14, 1928.

Action by Catherine C. Mitchill against Charles Lath and another. Judgment of Special Term in plaintiff's favor, directing specific performance of an agreement to remove an icehouse, was affirmed by the Appellate Division (220 App. Div. 776, 221 N. Y. S. 864), and defendants appeal.

Judgments of Appellate Division and Trial Term reversed, and complaint dismissed.

Lehman and Crane, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, Second Department.

James G. Meyer, John T. Kelly, and Daniel A. Dugan, all of Beacon, for appellants.

Arthur H. Haaren, of New York City, for respondent.

ANDREWS, J.

In the fall of 1923 the Laths owned a farm. This they wished to sell. Across the road, on land belonging to Lieutenant Governor Lunn, they had an icehouse which they might remove. Mrs. Mitchill looked over the land with a view to its purchase. She found the icehouse objectionable. Thereupon ‘the defendants orally promised and agreed, for and in consideration of the purchase of their farm by the plaintiff, to remove the said icehouse in the spring of 1924.’ Relying upon this promise, she made a written contract to buy the property for $8,400, for cash and mortgage and containing various provisions usual in such papers. Later receiving a deed, she entered into possession, and has spent considerable sums in improving the property for use as a summer residence. The defendants have not fulfilled their promise as to the icehouse, and do not intend to do so. We are not dealing, however, with their moral delinquencies. The question before us is whether their oral agreement may be enforced in a court of equity.

[1][2] This requires a discussion of the parol evidence rule-a rule of law which defines the limits of the contract to be construed. Glackin v. Bennett, 226 Mass. 316, 115 N. E. 490. It is more than a rule of evidence, and oral testimony, even if admitted, will not control the written contract (O'Malley v. Grady, 222 Mass. 202, 109 N. E. 829), unless admitted without objection (Brady v. Nally, 151 N. Y. 258, 45 N. E. 547). It applies, however, to attempts to modify such a contract by parol. It does not affect a parol collateral contract distinct from and independent of the written agreement. It is, at times, troublesome to draw the line. Williston, in his work on Contracts (secion 637) points out the difficulty. ‘Two entirely distinct contracts,’ he says, ‘each for a separate consideration, may be made at the same time, and will be distinct legally. Where, however, one agreement is entered into wholly or partly in consideration of the simultaneous agreement to enter into another, the transactions are necessarily bound together. * * * Then if one of the agreements is oral and the other in writing, the problem arises whether the bond is sufficiently close to prevent proof of the oral agreement.’ That is the situation here. It is claimed that the defendants are called upon to do more than is required by their written contract in connection with the sale as to which it deals.

[3] The principal may be clear, but it can be given effect by no mechanical rule. As so often happens it is a matter of degree, for, as Prof. Williston also says, where a contract contains several promises on each side it is not difficult to put any one of them in the form of a collateral agreement. If this were enough, written contracts might always be modified by parol. Not from, but substance, is the test.

In applying this test, the policy of our courts is to be considered. We have believed that the purpose behind the rule was a wise one, not easily to be abandoned. Notwithstanding injustice here and there, on the whole it works for good. Old precedents and principles are not to be lightly cast aside, unless it is certain that they are an obstruction under present conditions. New York has been less open to arguments that would modify this particular rule, than some jurisdictions elsewhere. Thus in Eighmie v. Taylor, 98 N. Y. 288, it was held that a parol warranty might not be shown, although no warranties were contained in the writing.

[4] Under our decisions before such an oral agreement as the present is received to vary the written contract, at least three conditions must exist: (1) The agreement must in form be a collateral one; (2) it must not contradict express or implied provisions of the written contract; (3) it must be one that parties would not ordinarily be expected to embody in the writing, or, put in another way, an inspection of the written contract, read in the light of surrounding circumstances, must not indicate that the writing appears ‘to contain the engagements of the parties, and to define the object and measure the extent of such engagement.’ Or, again, it must not be so clearly connected with the principal transaction as to be part and parcel of it.

[5] The respondent does not satisfy the third of these requirements. It may be, not the second. We have a written contract for the purchase and sale of land. The buyer is to pay $8,400 in the way described. She is also to pay her portion of any rents, interest on mortgages, insurance premiums, and water meter charges. She may have a survey made of the premises. On their part, the sellers are to give a full covenant deed of the premises as described, or as they may be described by the surveyor, if the survey is had, executed, and acknowledged at their own expense; they sell the personal property on the farm and represent they own it; they agree that all amounts paid them on the contract and the expense of examining the title shall be a lien on the property; they assume the risk of loss or damage by fire until the deed is delivered; and they agree to pay the broker his commissions. Are they to do more? Or is such a claim inconsistent with these precise provisions? It could not be shown that the plaintiff was to pay $500 additional. Is it also implied that the defendants are not to do anything unexpressed in the writing?

That we need not decide. At least, however, an inspection of this contract shows a full and complete agreement, setting forth in detail the obligations of each party. On reading it, one would conclude that the reciprocal obligations of the parties were fully detailed. Nor would his opinion alter if he knew the surrounding circumstances. The presence of the icehouse, even the knowledge that Mrs. Mitchill thought it objectionable, would not lead to the belief that a separate agreement existed with regard to it. Were such an agreement made it would seem most natural that the inquirer should find it in the contract. Collateral in form it is found to be, but it is closely related to the subject dealt with in the written agreement-so closely that we hold it may not be proved.

Where the line between the competent and the incompetent is narrow the citation of authorities is of slight use. Each represents the judgment of the court on the precise facts before it. How closely bound to the contract is the supposed collateral agreement is the decisive factor in each case. But reference may be made to Johnson v. Oppenheim, 55 N. Y. 280, 292;Thomas v. Scutt, 127 N. Y. 133, 27 N. E. 961;Eighmie v. Taylor, 98 N. Y. 288;Stowell v. Greenwich Ins. Co., 163 N. Y. 298, 57 N. E. 480;Newburger v. American Surety Co., 242 N. Y. 134, 151 N. E. 155;Love v. Hamel, 59 App. Div. 360, 69 N. Y. S. 251;Daly v. Piza, 105 App. Div. 496, 94 N. Y. S. 154;Seitz v. Brewer's Refrigerating Co., 141 U. S. 510, 12 S. Ct. 46, 35 L. Ed. 837;American Locomotive Co. v. National Wholesale Grocery Co., Inc., 226 Mass. 314, 115 N. E. 404, L. R. A. 1917D, 1125;Doyle v. Dixon, 12 Allen (Mass.) 576. Of these citations, Johnson v. Oppenheim and the two in the Appellate Division relate to collateral contracts said to have been the inducing cause of the main contract. They refer to leases. A similar case is Wilson v. Deen, 74 N. Y. 531. All hold that an oral stipulation, said to have been the inducing cause for the subsequent execution of the lease itself, concerning some act to be done by the landlord, or some condition as to the leased premises, might not be shown. In principal they are not unlike the case before us. Attention should be called also to Taylor v. Hopper, 62 N. Y. 649, where it is assumed that eivdence of a parol agreement to remove a barn, which was an inducement to the sale of lots, was improper.

We do not ignore the fact that authorities may be found that would seem to support the contention of the appellant. Such are Erskine v. Adeane (1873) L. R. 8 Ch. App. 756, and Morgan v. Griffith (1871) L. R. 6 Exch. 70, where, although there was a written lease a collateral agreement of the landlord to reduce the game was admitted. In this state, Wilson v. Deen might lead to the contrary result. Neither are they approved in New Jersey. Naumberg v. Young, 44 N. J. Law, 331, 43 Am. Rep. 380. Nor in view of later cases in this court can Batterman v. Pierce, 3 Hill, 171, be considered an authority. A line of cases in Massachusetts, of which Durkin v. Cobleigh, 156 Mass. 108, 30 N. E. 474,17 L. R. A. 270, 32 Am. St. Rep. 436, is an example, have to do with collateral contracts made before a deed is given. But the fixed form of a deed makes it inappropriate to insert collateral agreements, however closely connected with the sale. This may be cause for an exception. Here we deal with the contract on the basis of which the deed to Mrs. Mitchill was given subsequently, and we confine ourselves to the question whether its terms may be modified.

Finally there is the case of Chapin V. Dobson, 78 N. Y. 74, 76,34 Am. Rep. 512. This is acknowledged to be on the border line and is rarely cited except to be distinguished. Assuming the premises, however, the court was clearly right. There was nothing on the face of the written contract, it said, to show that it intended to express the entire agreement. And...