Blewitt v. Boorum

• Decision Date: 01 May 1894
• Citation: 142 N.Y. 357,37 N.E. 119
• Parties: BLEWITT v. BOORUM et al.
• Court: New York Court of Appeals Court of Appeals

142 N.Y. 357

37 N.E. 119

BLEWITT

v.BOORUM et al.

Court of Appeals of New York.

May 1, 1894.

Appeal from superior court of New York city, general term.

Action by Alfred Blewitt against William B. Boorum and another on a contract. From a judgment of the general term (14 N. Y. Supp. 298) affirming a judgment dismissing the complaint, plaintiff appeals. Affirmed.

Isaac N. Miller, for appellant.

James L. Bishop, for respondents.

PECKHAM, J.

This action was brought to obtain an accounting from defendants, and for damages sustained by plaintiff by reason of the violation of a certain contract, under seal, entered into between the parties to the action, in relation to the right to manufacture and sell a temporary kind of binder for books, called the ‘Common-Sense Binder,’ and for which letters patent had been issued. The defendants admitted the execution of the contract, but alleged that it had been executed upon the condition that it was not to operate as a contract until the plaintiff acquired the interest of a third person in the patent spoken of in the agreement, and it was alleged that the plaintiff had never performed the condition. Evidence showing that the contract was executed with the parol condition above stated, and that the condition had never been performed, was offered upon the trial, and received by the court, under proper objection and exception on the part of the plaintiff; and, after the evidence was in the court found the fact in accordance with defendants' contention, and gave judgment dismissing the complaint, which was affirmed at the general term, and from such affirmance the plaintiff has appealed to this court.

The case of Reynolds v. Robinson, 110 N. Y. 654, 18 N. E. 127, holds that a writing which is in form a complete contract, and which has been delivered, may be proved by parol evidence to have been delivered upon a condition that it was not to become a binding contract until the happening of some event in the future, and that such event had not occurred. The cases cited in the brief opinion fully bear out the statement. The plaintiff here contends that the authority of that case must be confined to contracts which are not under seal, and, as the contract here was a sealed one, the case has no application. Of course, the mere presence or absence of a seal upon a writing would seem to be a matter of the smallest importance upon the question now under consideration. The same reasons would apply with equal force for receiving or rejecting the contemporaneous parol understanding where the writing was sealed, as where the seal was absent. It is a question in each case as to whether there has or has not been an executed and completed agreement or act. Many of the old English cases held the doctrine that where there was a writing bearing upon its face the marks that it was fully and completely executed, if there were a delivery of the writing to the party himself, there could be no parol evidence that the delivery was upon a condition, or in escrow. The reason assigned in many cases was that such evidence would lead to the result that a bare averment, without any writing, would make void every deed. The word ‘deed’ was not used in its restricted sense of a written instrument conveying land, or some interest therein, but in the sense that it was a writing of the party, and hence his act or deed. In Williams v. Green, Cro. Eliz. 884, the action was one of debt on a bill. There was no seal attached. The plea was that the bill had been delivered to the plaintiff as a schedule (a memorandum), upon condition that, if plaintiff delivered to defendant a horse upon a certain day, then the schedule was to be his deed,-otherwise not,-and that plaintiff had not delivered the horse. The plaintiff demurred to the plea, and it was resolved by the whole court to be a bad plea, for a deed could not be delivered to the party himself, as an escrow, because then a bare averment without any writing would make void any deed. The decision was not based upon the question of a seal, and the paper was referred to as a deed simply by way of description of an act of the party in delivering a written instrument which ought not to be rendered void by a parol contemporaneous understanding or agreement. The reason would apply with equal force to all written instruments, sealed or unsealed. Other cases of a nature where the writings needed not to have been under seal, and where it was held that they could not be delivered conditionally to the party to the instrument, are cited in 2 Co. Litt. 276 (Phila. Ed. 1827; 1st Am. from last London Ed.). On the other hand, there is one case which decided that a writing obligatory could be delivered in escrow to the obligee (Hawksland v. Gatchel, Cro. Eliz. 835); but, after differences of opinion among the judges it was finally resolved otherwise in later cases, as stated in Coke, supra. These cases show that the rule preventing parol evidence of a delivery to the party upon condition was not founded upon the presence of a seal to the writing, but the rule was adopted because, when the words were contrary to the act (of delivery), the words were regarded as of no effect, for it was not what was said, but what was done, that was, in such case, to be regarded. Hence, a delivery to a party was said to be inconsistent with any condition attached to it, and a condition was in fact a contradiction of the writing; and parol evidence of the condition was therefore inadmissible. A different view was subsequently taken of this act of delivery. The court said it was not a contradiction of the terms or legal effect of the writing, but it was proof, simply, that no contract had in fact been entered into. They said that the production of a writing purporting to be an agreement by a party, with his signature attached, afforded a strong presumption that it was his written agreement, but if at the time the parties agreed that the writing was not to take effect as an agreement until the happening of some event,-in other words, that it was agreed upon conditionally,-then it should not take effect until the happening of the event, or the fulfillment of the condition. Pym v. Campbell, 6 El. & Bl. 370. Crompton, J., in the above case, in speaking of an instrument under seal, said it could not be a deed until there was a delivery, and when there was a delivery that estops the parties to the deed, which was a technical reason why a deed could not be delivered as an escrow to the other party. He said the parties may not vary a written agreement, but they may show that they never came to an agreement at all, and that the signed paper was never intended to be the record of the terms of the agreement, for they never had agreeing minds. In truth, however, the court of exchequer, in Bowker v. Burdekin, 11 Mees. & W. 127, had already distinctly stated that a delivery...