Lawrence v. Tandy & Allen, A--43

• Citation: 100 A.2d 891,14 N.J. 1
• Decision Date: 30 November 1953
• Docket Number: No. A--43,A--43
• Parties: LAWRENCE et ux. v. TANDY & ALLEN, Inc.
• Court: New Jersey Supreme Court

Page 1

14 N.J. 1

100 A.2d 891

LAWRENCE et ux. v. TANDY & ALLEN, Inc.

No. A--43.

Supreme Court of New Jersey.

Argued Nov. 2, 1953.

Decided Nov. 30, 1953.

Maurice C. Brigadier, Jersey City, argued the cause for appellant (Draesel & Borfman, Hackensack, attorneys).

Sam Denetman, Newark, argued the cause for respondents (Milton M. Unger, and Adrian M. Unger, Newark, attorneys).

The opinion of the court was delivered by

WACHENFELD, J.

The respondents, Sidney Lawrence and his wife, late in 1951 became interested in purchasing a dwelling then under construction by the appellant at 96 Oak Trail Road. Hillsdale, Bergen County. The negotiations culminated in a contract for the purchase and sale of the house, when completed, on the lot upon which it was being erected, for the sum of.$23,500, the appellant agreeing to erect upon said premises 'a one family dwelling substantially similar in workmanship, material and design (except for changes, if any, hereinafter set forth) to the sample house exhibited to the Purchaser at Lot 5, Block 8--13 Saddle Wood Hills, Hillsdale, Bergen County, New Jersey.'

During the negotiations Mr. Lawrence examined the dwelling under construction and became apprehensive about the accumulation of water in the cellar. He was assured this condition was transitory and was due merely to exposure to the elements.

Not being satisfied with the explanation, however, on October 27, 1951, when the contract was about to be signed, he insisted it contain an undertaking by the appellant that the cellar would be and remain dry. He prepared a memorandum embodying his suggestions and requested it be incorporated in the contract. The appellant agreed to the guarantee but demurred to its being included in the contract because it was a prepared form and would make matters 'too complicated.' A separate memorandum was therefore drafted and signed by the owner, upon which the respondents immediately signed the contract of sale and paid the deposit called for therein. It read thusly:

'In connection with the sale of premises located on Lot #9 as shown on a map entitled 'Map of Hill Section, Saddle-Wood Hills, Boro of Hillsdale' I agree to deliver to you a written guarantee against a wet cellar to expire one year from the date of the delivery of the deed.

'Very truly yours

'Tandy & Allen, Inc.

's/Norman Tandy

'10/27/51

Sec'y'

and was marked in evidence as P--3.

When the title was closed, a deed was tendered containing no commitment by the appellant concerning the condition of the basement. Lawrence refused to proceed with the closing without a guarantee as had been promised when the contract was signed. The appellant thereupon produced a document, P--4, which read as follows:

'Mr. and Mrs. Sidney Lawrence

'96 Oak Trail Road

'Hillsdale, N.J.

'Dear Mr. and Mrs. Lawrence:

'This is to certify that the undersigned hereby guarantees a dry cellar in the premises known as 96 Oak Trail Road, Hillsdale, N.J. for a period of one year from the date hereof.

'Sincerely yours,

'Tandy & Allen, Inc.

'By s/Herman Eidukot'

When this writing was delivered to the respondents, they accepted a deed for the premises in question and paid the balance of the purchase price.

The respondents moved into the new home and water continuously accumulated in the cellar, seeping through the floor of the basement and the side walls. Some effort was made by the appellant to remedy the situation but without success. Finally, the respondents were advised in writing that the builder would 'recognize no legal liability under the terms of our guarantee for the condition of * * * the cellar * * *.'

After the disavowal of the warranty, repairs to the basement were undertaken by the respondents to render it waterproof, and this action was instituted to recover the amount so expended. The jury returned a verdict of $2,803, whereupon an appeal was taken to the Superior Court and certified here by our own motion.

The appellant insists the agreement to give a 'guarantee' is Nudum pactum, being unsupported by consideration, and the 'document itself is insufficient in law to alter, modify or add to the terms of the written agreement to sell.' The authorities, it asserts, are legion in support of the well-established doctrine that matters extrinsic to a complete written instrument cannot have the force or effect of modifying the document, citing amongst others Naumberg v. Young, 44 N.J.L. 331 (Sup.Ct.1882) ; Booye v. Ries, 102 N.J.L. 322, 134 A. 86 (E. & A. 1925); Platt v. Currie,100 N.J.Eq. 543, 135 A. 808 (E. & A. 1926); Codd v. Shepard Builders, Inc.,129 N.J.L. 190, 28 A.2d 617 (Sup.Ct.1942); Ross v. Orr, 3 N.J. 277, 69 A.2d 730 (1949); Winoka Village, Inc., v. Tate, 16 N.J.Super. 330, 331, 84 A.2d 626 (App.Div.1951); Wilkins v. Bailey Engineering Co., Inc., 21 N.J.Super. 227, 91 A.2d 98 (App.Div.1952).

The rule, firmly entrenched as it is, nevertheless has exceptions and is not universal in its application. Many cases hold where several writings are made as part of one transaction relating to the same subject matter, they may be read together as one instrument, and the recitals in one may be explained, amplified or limited by reference to the other--the one draws contractual sustenance from the other. See Schlossman's, Inc., v. Radcliffe,3 N.J. 430, 70 A.2d 493 (1950).

Greenleaf, referring to the rule, says:

'It is in the first place to be observed that the (parol evidence) rule does not restrict the Court to the perusal of a single instrument or paper; for while the controversy is between the original parties, or their representatives, all their contemporaneous writings, relating to the same subject matter, are admissible in evidence.' 1 Greenleaf on Evidence (16th ed.) 411, sec. 282.

In Gould v. Magnolia Metal Co., 207 Ill. 172, 69 N.E. 896, 898 (Sup.Ct.1904), dwelling upon the same topic, the court said:

'It is equally well established that, where the agreement is evidenced by more than one writing, all of them are to be read together and construed as one contract, and all the writings executed at the same time and relating to the same subject-matter are admissible in evidence.'

In Atlantic Northern Airlines, Inc., v. Schwimmer, 12 N.J. 293, 96 A.2d 652, 657, (1953), this court, speaking of a written contract and the intent of the parties, said:

'Whether a particular subject of negotiation is embodied by the writing depends wholly upon the intent of the parties, but the intent must be judged by an external standard. The writing is not 'wholly and intrinsically self-determinative of the parties' intent to make it the sole memorial' of the subject of negotiation; this intent 'must be sought where always intent must be sought, namely, in the conduct and language of the parties and the surrounding circumstances. The document alone will not suffice. What it was intended to cover cannot be known till we know what there was to cover. The question being whether certain subjects of negotiation were intended to be covered, we must compare the writing and the negotiations before we can determine whether they were in fact covered."

And again:

'Thus the basic question here is whether the parties assented to the writing as the complete integration of their agreement. The writing itself is not conclusive of this issue. But it is an influential evidential factor, even though not necessarily decisive of this factual inquiry.'

In a situation practically parallel, involving a leaky basement in a house erected to 'be substantially completed similar to' another model house referred to in the contract, the memorandum in reference to the cellar being in a separate writing, the Appellate Division very recently permitted the evidence objected to as violating the standards set forth in Naumberg v. Young, supra, saying:

'The necessary elements of a valid contractual compromise are the Bona fides of the dispute and conciliation and the reality, not the unknown and undetermined substantiality of the claim. * * * The core of a contract is the agglutinated intentions of the parties thereto.' Meola v. Gorga, 27 N.J.Super. 390, 99 A.2d 545, 547, (App.Div.1953).

A court may justifiably exhibit considerable reluctance in applying a legal doctrine if it is apparent by so doing essential justice may be infringed upon. The whole purport of the law is, in fact, to the contrary.

Here the thought uppermost in the minds of the purchasers was a dry basement. They were not...