
    Robert L. Moores, Resp’t, v. William H. H. Glover, Appl’t.
    
      (City Court of Brooklyn, General Term,
    
      Filed February 25, 1891.)
    
    Evidence—Parol to vary written contract.
    The exception to the rule prohibiting the admission of parol evidence to vary a written contract which allows such evidence where the original contract was verbal and entire and a part only reduced to writing, has reference to an instrument on the face of which there is nothing to show that it was intended to contain the entire contract, and has no reference to one which on its face does indicate such intention and design.
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial.
    
      Horace Graves, for resp’t; Hays & Greenbaum, for app’lt.
   Van Wyck, J.

The testimony in this case shows that defendant one Sweeney, about October, 1887, into a written agreement whereby Sweeney contracted to sell and convey to defendant four houses on Yanderveer street for $7,500. The testimony further shows that plaintiff and defendant entered into a written contract, signed and sealed by both in October, 1887, whereby the plaintiff covenanted to convey to defendant two unfinished houses on Quincy street, and the defendant covenanted, in consideration of such conveyance, to finish and sell the same with the utmost diligence, and divide the net profits between them. The plaintiff was allowed (against the objection of defendant that the terms of this written contract ought not to be contradicted, altered, added to or varied by oral evidence) to show by parol testimony that, prior to the execution thereof, the olaintiff agreed to convey the Quincy street houses and procure ,e conveyance of the Yanderveer street houses to defendant, and that defendant, in consideration of the conveyance of the two sets of houses, agreed to pay the'owner of the Yanderveer street houses $7,500, and pay the plaintiff $900, and to finish the Quincy street houses and sell them, and divide the profits- thereupon equally between them. The plaintiff recovered at the trial for a breach of the alleged contract, in the failure of the defendant to pay the $900. The question on this appeal is whether or not the additional terms established by parol evidence can be engrafted upon and inserted in the written contract for the purpose of sustaining the recovery herein. The courts, recognizing that memory has natural defects besides being subject to be warped and twisted by bias, and being liable in the face of self-interest to substitute strained and unwarranted inferences for the language used, have declared a general rule applicable to this subject; that the presumption of law is that a contract reduced to writing contains the whole of the agreement, and that oral representations and stipulations differing from and not inserted in it, will not be admitted to add to, take from, vary or modify the written agreement. Engelhorn v. Reitlinger, 122 N. Y., 76; 33 N. Y. State Rep., 275; Marsh v. McNair, 99 N. Y., 174: see p. 179.

Unless the case at bar comes within some one of the exceptions thereto, this recovery cannot be upheld. • The object of the rule is to protect the parties to the contract against bad memories and bad faith. The exception, of which the largest number of the authorities treat, is -based upon the imperfections of language, and the inadequate manner in which people adjust words to the facts to which they apply. Hence parol evidence is resorted to for the purpose of interpreting the language of written instrumets, but this exception will not help the plaintiff. Hinnemann v. Rosenback, 39 N. Y., 98.

Another exception is where the instrument does not purport to be the complete and entire contract of the parties. Receipts and agreements in part performance of the oral contract come withinthis. The instrument in question is a contract with mutual covenants, and has none of the elements of a receipt. It is not a part performance of any of the terms of the alleged parol agreement. It is simply, according to plaintiff’s own showing, certain mutual promises of the alleged oral agreement reduced to writing. The deed of conveyance given in pursuance of the parol agreement would be an instrument made in part performance of such agreement, but a promise in writing to give the deed would be a mere reduction to writing of the parol promise. Chamberlain v. Van Campen, 7 N. Y. State Rep., 100; Filkins v. Whyman, 24 N. Y., 338; Marsh v. McNair, 99 id., 174, see p. 179.

The exception that the general rule “ does not apply where the original contract was verbal and entire, and a part only was reduced to writing ” has reference to an instrument upon the face of which there is nothing to show that it was intended to contain the entire contract between the parties, Chapin v. Dobson, 78 N. Y., 74; Brigg v. Hilton, 99 id., 517; Routledge v. Worthington, 119 N. Y., 596; 30 N. Y. State Rep., 195, and has no reference to an instrument which does upon its face indicate such intention and design.- It would destroy the rule to permit a party to show that a perfect, complete and consummated written agreement like this one, with mutual covenants, was only a part of the verbal agreement between the parties, and to insert additional terms either more or less onerous. Engelhorn v. Reitlinger, 122 N. Y., 76; 33 N. Y. State Rep.; 275 ; Marsh v. McNair, 99 N. Y., 174; Eighmie v. Taylor, 98 id., 288 ; Larrowe v. Lewis, 44 Hun, 226 ; 7 N. Y. State Rep., 809 ; Wilson v. Deen, 74 N. Y., 531.

We think the judgment and order appealed from should be reversed, and a new trial ordered, with costs to abide the event

Clement, Ch. J., concurs.  