Thomas v. Scutt

• Decision Date: 02 June 1891
• Citation: 27 N.E. 961,127 N.Y. 133
• Parties: THOMAS et al. v. SCUTT.
• Court: New York Court of Appeals Court of Appeals

127 N.Y. 133

27 N.E. 961

THOMAS et al.

v.SCUTT.

Court of Appeals of New York, Second Division.

June 2, 1891.

Appeal from a judgment of the general term of the supreme court, in the fourth judicial department, affirming a judgment entered on the report of a referee. Action to recover the sum of $800 alleged by the plaintiffs to be due them from the defendant upon the sale of a quantity of lumber. The defendant denied the purchase, and alleged that all the lumber that he had of the plaintiffs' was turned out to him to secure advances that he had previously made to them, under the express agreement that it should be rafted to market, and sold as his lumber, and that he should account to them for the proceeds thereof when received, after deducting all expenses and the amount of their indebtedness to him. The defendant further alleged that, owing to low water in the Delaware river, the lumber could not be got to market without great expense, necessarily incurred in taking it out of the river and rerafting it, and that the proceeds received by him were much less than the actual expenses and the amount of his claim against the plaintiffs. The action was tried before a referee, who found that June 11, 1883, the lumber in question was sold by the plaintiffs to the defendant for the sum of $728, which was to be applied by him upon a chattel mortgage given by them upon said lumber and other property to secure a debt of $1,600, and that soon after the balance of the mortgage was paid in cash. It appeared that the defendant, at about the date of the alleged sale, took possession of the lumber, and, after some delay, sold it; but, owing to the unusual difficulty of getting it to market, little or nothing was realized above expenses.

W. J. Welsh, for appellant.

A. Taylor and John B. Gleason, for respondents.

VANN, J., ( after stating the facts as above.)

Upon the trial, the plaintiffs put in evidence a written instrument, dated June 11, 1883, duly signed by them, of which the following is a copy, viz.: ‘For the consideration hereinafter named, we hereby sell, assign, transfer, and deliver to Milo Scutt one raft of hemlock toggle timber, and loading thereon, now lying at Equinunk Eddy, just below the Rock, in Buckingham township, Pa., the said lumber being covered by a chattel mortgage of which the mortgage hereto attached is a copy, viz.:

+-------------------------------------------+
                ¦4,000 feet cherry boards, at $12   ¦$ 48 00¦
                +-----------------------------------+-------¦
                ¦35,000 maple plank, about, at $10  ¦350 00 ¦
                +-----------------------------------+-------¦
                ¦11,000 feet of toggle timber, at 3c¦830 00 ¦
                +-----------------------------------+-------¦
                ¦                                   ¦$728 00¦
                +-------------------------------------------+
                

The same to apply on the amount due on said chattel mortgage, and, if any mistake in amount of lumber, same to becorrected.' A chattel mortgage was annexed to this writing, dated March 29, 1883, given by the plaintiffs to defendant to secure the payment of $1,600 on the first of May following. It covered a large quantity of lumber in addition to that mentioned in the written agreement, and stated that it was all at Peas Eddy, a place within the state of New York. The indebtedness of the plaintiffs to the defendant on the 11th of June, 1883, amounted to the sum of $2,100, including that secured by the chattel mortgage. The plaintiff also showed that, shortly after the written instrument was given, they paid to the defendant enough money to fully equal the amount unpaid upon the mortgage, provided said sum of $728 had first been applied. Thereupon the defendant, in due form, offered to show ‘what was said between the parties in reference to the bill of sale,’ but the offer was excluded, upon the ground that the writing was the best evidence, and that it could not be contradicted or avoided by parol. The defendant further sought to prove ‘that, prior to and at the time of the drawing of the bill of sale, the plaintiffs refused to make an absolute disposition of the lumber; that they wee informed that such was not intended, but that the raft was in Pennsylvania, and that the chattel mortgage did not protect defendant against a levy upon or disposition of the lumber by the plaintiffs in that state; that plaintiffs should have the full benefit of the lumber, and what it brought on the sale when marketed, after paying the plaintiffs' claim, and the expense of running and marketing it; that plaintiffs said they were satisfied with that, and would make the bill of sale on this baiss, and thereupon did sign the bill of sale.’ This evidence was also objected to and excluded upon the same ground. At a later stage of the trial the defendant, under the same objection, was permitted to testify in reference to what was said between himself and one of the plaintiffs just before the written instrument, called for convenience a ‘bill of sale,’ was executed; but it was subsequently stricken out on motion of the plaintiffs, and against the objection of the defendant, upon the same ground that had governed the prior rulings. Exceptions to these decisions of the referee present the only question that the learned counsel for the defendant has asked us to decide. It is a general rule that evidence of what was said between the parties to a valid instrument in writing, either prior to or at the time of its execution, cannot be received to contradict or vary its terms. This rule is not universal in its application, because the courts, in their effort to prevent fraud and injustice, have laid down certain exceptions, which, although correct in principle, are sometimes so loosely applied in practice as to threaten the integrity of the rule itself. I Greenl. Ev. § 284 a. The real exceptions may be grouped in two classes, the first of which includes those cases in which parol evidence has been received to show that that which purports to be a written contract is in fact no contract at all. Thus, fraud, illegality, want of consideration, delivery upon an unperformed condition, and the like, may be shown by parol, not to contradict or vary, but to destroy, a written instrument. Such proof does not recognize the contract as ever existing as a valid agreement, and is received, from the necessity of the case, to show that that which appears to be is not, and never was, a contract. Illustrations of this class may be found in the following citations: Beecker v. Vrooman, 13 Johns. 301; Hammond v. Hopping, 13 Wend. 505;Johnson v. Miln, 14 Wend. 195;Benton v. Martin, 52 N. Y. 570;Grierson v. Mason, 60 N. Y. 394; 1 Greenl. Ev. § 284; Phil. Ev. (2 Cow. & H. notes) p. 665, note 494. The second class embraces those cases which recognize the written instrument as existing and valid, but regard it as incomplete, either obviously, or at least possibly, and admit parol evidence, not to contradict or vary, but to complete, the entire agreement, of which the writing is only a part. Receipts, bills of parcels, and writings that evidently express only some parts of the agreement, are examples of this class, which leaves the written contract unchanged, but treats it as a part of an entire oral agreement, the remainder of which was not reduced to writing. Two things however, are essential to bring a case within this class: (1) The writing must not appear, upon inspection, to be a complete contract, embracing all the particulars necessary to make a perfect agreement, and designed to express the whole arrangement between the parties, for in such a case it is conclusively presumed to embrace the entire contract. (2) The parol evidence must be consistent with, and not contradictory of, the written instrument. Chapin v. Dobson, 78 N. Y. 74, is an instance of this ciass, and, although near the border line, illustrates the two requirements just mentioned. In that case it was held competent to show by parol evidence that a written...