
    Boro Motors Corp., Appellant, v. Century Motor Sales Corp., Respondent.
    Argued January 7, 1963;
    decided February 21, 1963.
    
      Milton H. Goldstricker for appellant.
    I. The Appellate Division erred in setting aside the verdict of the jury and dismissing the complaint. (Willmott v. Giarraputo, 5 N Y 2d 250; Friedman & Co. v. Newman, 255 N. Y. 340; N. E. D. Holding Co. v. McKinley, 246 N. Y. 40; Mesibov, Glinert & Levy v. Cohen Bros. Mfg. Co., 245 N. Y. 305; Lese v. Lamprecht, 196 N. Y. 32; Fogelson v. Rackfay Constr. Co., 300 N. Y. 334; Laskey v. Rubel Corp., 303 N. Y. 69; Geiger v. Bush, 288 N. Y. 365.) II. The written contract, plaintiff’s exhibit No. 1, was not a mere memorandum evidencing an oral contract but a writing which formally integrated the contract between the parties, and neither its expressed nor its implied terms could be changed, enlarged or modified by evidence of prior or contemporaneous oral agreements. The parol evidence rule applies to such a contract. (Mesibov, Glinert & Levy v. Cohen Bros. Mfg. Co., 245 N. Y. 305; Keystone Hardware Corp. v. Tague, 246 N. Y. 79; Weinhaub v. Kruse., 234 N. Y. 575; Wertheimer v. Boehm, 241 N. Y. 575; Eighmie v. Taylor, 98 N. Y. 288; Haimes v. Schonwit, 295 N. Y. 577; Baker v. Higgins, 21 N. Y. 397; Curtiss v. Howell, 39 N. Y. 211; Boehm v. Lies, 138 N. Y. 609.) III. The written agreement provided for a mortgage payable after 20 years and for 5%% interest payable at the end of every year and plaintiff was willing to consummate the sale on those terms which were more favorable to defendant than the alleged oral agreement for quarterly payments of amortization and interest. Defendant could not legally, invoke such alleged oral terms, less favorable to defendant, as a subterfuge in order to evade performance of its written contract. (Amies v. Wesnofske, 255 N. Y. 156; Boehm v. Lies, 138 N. Y. 609; Raner v. Goldberg, 244 N. Y. 438; Nichols v. Nichols, 306. N. Y. 490; Friedman v. Handelman, 300 N. Y. 188; Matter of Loew’s Buffalo Theatres, 233 N. Y. 495; Wilson Sullivan Co. v. International Paper Makers Realty Corp., 307 N. Y. 20; Raleigh Associates v. Henry, 302 N. Y. 467.)
    
      Raphael H. Weissman for respondent.
    I. There is no error in, the Appellate Division’s holding that plaintiff’s president testified that, prior to the signing of the March 14, 1957 writing, the parties had agreed upon quarterly payments of interest and upon self-liquidating amortization payments which were not incorporated in the writing, thus rendering the writing void under the Statute of Frauds and requiring reversal of the judgment and dismissal of the amended complaint. (Poel v. Brunswick-Balke-Collender Co., 216 N. Y. 310; Willmott v. Giarraputo, 5 N Y 2d 250; Thomson v. New York Trust Co., 293 N. Y. 58; Kingsbridge Improvement Co. v. American Exch.-Pacific Nat. Bank, 249 N. Y. 97; Spielvogel v. Veit, 197 App. Div. 804; Mesibov, Glinert & Levy v. Cohen Bros. Mfg. Co., 245 N. Y. 305; N. E. D. Holding Co. v. McKinley, 246 N. Y. 40.) II. Another ground that supports the judgment on appeal is that there is no showing that defendant would have received what it contracted for had it performed, respecting the parcel that plaintiff did not own and the question of approval by General Motors as a Pontiac dealer. (Bigler v. Morgan, 77 N. Y. 312.)
   Chief Judge Desmond.

The only question of importance is the one answered in the affirmative by the Appellate Division: that is, was the agreement embodied in the memorandum unenforcible under the Statute of Frauds because of an omission from that paper of terms essential and previously agreed upon orally? Since the trial court’s instruction to the jury as to the applicable rule of law was not excepted to, it became the law of the case as charged by the court that any such omission would make the written agreement incapable of enforcement. However, the trial court sent to the jury also, as a question of fact, the issue of whether the parties had, prior to the signing of the writing, agreed on mortgage payment terms which never found their way into the writing. The testimony pointed to as establishing the affirmative of that proposition was given by plaintiff’s president Kaufman. His testimony could perhaps be read as meaning that before the signing of the paper the parties had come to a conclusive agreement as to interest and amortization payments on the mortgage, but the testimony was equally susceptible of the construction that this was mere discussion which never arrived at the point of agreement. The trial court was right, therefore, in treating it as a question of fact. The jury’s verdict for plaintiff was a finding that the document sued upon contained all the terms upon which the parties had agreed. Accordingly, the resulting judgment could not be reversed on the law. However, since the Appellate Division’s order states that the reversal is on the facts, as well as on the law, there must be a new trial.

The judgment should be reversed and a new trial granted, with costs to abide the event.

Judges Dye, Fuld, Van Voorhis and Foster concur with Chief Judge Desmond ; Judges Burke and Scileppi dissent and vote to affirm upon the memorandum in the Appellate Division.

Judgment reversed, etc.  