Hanes v. Sackett

Spring, J.: The evidence warrants the conclusion that- when Butler sold the . land he expected to transfer also his claim against Mrs. Mulholland. His agreement with his brother for the erection of a dwelling house was not yet fulfilled. There was no undertaking in writing by him with Davis that it should be carried out, yet it is clear that that also was expected, and that expectation is best supported by the fact that David Butler did build the house pursuant to the agreement. The completion of the house was essential before Mrs. Mulholland was liable to pay the $250, and it was evidently intended that David Butler should erect the building and that Davis should then become vested with the title to the demand against Mrs. Mulholland. When he accepted the conveyance the house was in process of erection and h¿ took the risk of David Butler completing it according to his contract. If for any reason the house was not, inclosed, then Mrs. Mulholland could not be made to pay, and Davis purchased it with that condition confronting.him. The law is well settled that an assignment of a chose in action by parol based upon a valuable consideration passes the title. (Risley v. Phenix Bank, 83 N. Y. 318; Williams v. Ingersoll, 89 id. 508, 521.) The troublesome question in this case, however, does not hinge upon that principle, but whether the oral transfer is in variation or hostility to the deed of conveyance. The transfer of the claim against Mrs. Mulholland was wholly independent of the deed to Davis. The latter was for the purpose of vesting the title to the land in the grantee. The former was to effect the sale of personal property — a chose in action. The claim of the plaintiff is that contemporaneously with the execution and delivery of the deed and resting upon the same consideration, Davis purchased this demand of Butler. Parol proof that he did make such purchase does not contradict the deed. By that conveyance he agreed to pay $100 and also to assume the payment of the two mortgages. Plaintiff does not seek to contradict or vary those facts. His contention is that aside from the conveyance there was an agreement by which Davis was to acquire the right to this $250 when it matured, and a like agreement was made when Davis conveyed. In Hutzler v. Richter (13 App. Div. 592) the defendants purchased a tract of land of the plaintiff for $1,200, $400 of which [614] were paid in cash and the balance was secured by the bond and mort■gage of the defendants. The defendant mortgagors agreed to keep the buildings insured as owners, for the benefit of the mortgagee in the sum of $700, which was not done, and the buildings subsequently burned uninsured. At the time of the- conveyance such buildings were insured for the sum of $700, and the policy had nearly two years of life. It was contended by the defendants that at that time the plaintiff orally agreed, aqjiart of the consideration and as an incentive for the purchase, that he would cause such policy to be transferred to the defendants as owners, but it was to be retained • by him until the mortgage wgs paid, and that- they relied upon that promise and did not obtain any insurance themselves. The buildings burned during the unexpired term of this policy, and the defendants sought to interpose these facts in defense of a suit brought by the plaintiffs tó foreclose the mortgage. This collateral agreement was wholly in parol, but this court held that, it being a separate agreement, it was susceptible of proof aud enforcement. The court say (at p. 595): “If, then, the verbal agreement does not conflict with, and is not merged into, the written one, obviously the principle upon which it must be sustained, if at all, is that it constitutes a collateral contract, separate and distinct' from the one which is contained in the mortgage, it being well settled that "proof of an independent, contemporaneous oral contract, even though it relates to the same subject-matter, in no manner violates the rule we have been considering.” The refinements in the discussion of the subject of the admissibility of evidence of a parol arrangement which is contemporaneous to, and connected with, a written agreement, have arisen very largely where it was contended that a part Only of the agreement was reduced to writing. If it is apparent that ¿there was an entire agreement, a part only of which has found expression in the written engagement of the parties, then oral proof is permissible to complete what was left unfinished in the writing, but not to vary or contradict it. (Thomas v. Scutt, 127 N. Y. 133 ; Stowell v. Greenwich Ins. Co., 163 id. 298; Brantingham v. Huff, 43 App. Div. 414; Juilliard v. Chaffee, 92 N. Y. 529.) The present case in no way involves that principle. In Thomas v. Scutt (supra) Judge Vann (at p. 140) makes the distinction [615] Avhich is applicable here in the following language: “ In the foregoing classification collateral agreements are not included because they are separate, independent and complete contracts, although relating to the same subject. They are allowed to be proved by parol because they Avere made by parol and no part thereof committed to Avriting.” The parties reduced to Avriting their agreement relating to the land. They, hoAvever, had a distinct contract, in no Avay impugning the land transaction, but based upon the consideration inhering in the conveyance. The proof of this separate agreement does not impair or affect the deed; it is collateral to it. The motives Avhich prompted the conveyance and this independent agreement are the same, but the character of the contracts is not at all identical. The enforcement of the oral agreement does not trench upon the conveyance, and does not, therefore,, come within the rule which prohibits oral proof to v-ary á written agreement. (Stokes v. Polley, 164 N. Y. 266; Gibbons v. Bush Co., 52 App. Div. 211; Engelhorn v. Reitlinger, 122 N. Y. 76 ; Brad. on Ev. [2d ed.] 305.) If this agreement were not independent, but related solely to the consideration of the conveyance, oral proof in explanation of the consideration would be competent. (Emmett v. Penoyer, 151 N. Y. 564 Baird v. Baird, 145 id. 659; Cosgriff v. Dewey, 21 App. Div. 129.) There is no question of the Statute of Frauds in the case. In the ■first place, the consideration for the oral agreement, as has been suggested, Avas identical with that upon which the conveyance depended. The agreement was, therefore, executed, performed by the grantee Davis and by the plaintiff, his successor in title and interest. In the second place, the answer contains no such defense. The judgment and order should be reversed and a new trial •ordered, Avith costs to the appellant to abide the event. All concurred, except McLennan, J., dissenting. Judgment and order reversed and new trial ordered, with costs to the appellant to abide event. Note.— The rest of the cases of this term will be found in the next volume 57 App. Div.— [Rep.