
    Forest G. Weeks, App’lt, v. Joseph Binns, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed February, 1895.)
    
    Evidence—Pabol.
    A subsequent separate, independent and complete oral contract which, though relating to the subject of the written agreement, does not controvert nor is inconsistent with it, may be shown by parol evidence.
    Appeal from a judgment, entered on a decision granting a non-suit.
    
      F. E. Stone, for app’lt; Goodelle & Nottingham, for resp’t.
   Hardin, P. J.

Plaintiff’s complaint alleges that on or about August 1, 1891, at Skaneateles, he “ sold, delivered, and returned to defendant one hundred and seven of said carboys, of the value and at the said agreed price of one dollar and fifty cents each, amounting to the sum of $160.50; and that defendant accepted and received the same at New York, and paid the freight thereon for plaintiff, but has neglected and refused to pay therefor.” Defendant, in his answer, admits “ that on or about August 15,1891, said plaintiff returned 107 of said carboys to the defendant.” In defendant’s answer it is alleged “that it is the custom of trade, with which plaintiff, as defendant is informed and believes, was well acquainted to permit the purchasers of carboys to return the same wituin a year, and to receive therefor $1.50 per carboy, but that, If the carboys were not returned within a year, to pay but seventy-five cents therefor, providing the same were in a good condition.” By the evidence it appears that a written order was given by the plaintiff to and accepted by the defendant, in the following language:

“ December 28, 1888.
“Joseph Bin ns, 188 Pearl street, New York: You may enter an order for 140 carboys 66 brimstone acid, at 95c per 100 lbs., ■delivered f. o. b. cars at mill 60 days, breakage guarantied. Shipment to be made Feby. 1st, with privilege to increase order to larger car load if Skaneateles Paper Co. wishes to go in.
“Yours,
F. G-. Weeks.
“0. Gr. W.
“Accepted.
“ Joseph Binns,
“Per Joseph Harrington.”

The order was made by Charles Gr. Weeks, son of the plaintiff, .acting as agent for the plaintiff; and Harrington was then salesman for the defendant, and received the order at the plaintiff’s office, at Skaneateles. Similar transactions had taken place between the parties during the year preceding. After the written order was given, the plaintiff's agent stated to the defendant’s agent “that the usual arrangement for returning the carboys would apply to these carboys that contained the vitriol, and he said they would; * * * and the price to be paid for them should prevail.” It appeared in the evidence that the order had been signed before this conversation took place. The witness added: “I had written the order, and lie had signed it, before anything was said about the carboys. * * * I copied it in the letter bdok, and, as I handed it to him, I had the conversation about the carboys.” After this conversation had been stated, the defendant’s counsel moved to strike out the evidence. The motion was granted, and an exception was taken. The plaintiff, in effect, offered to show that it was well understood by both parties that he should be allowed the price that he paid for the carboys, to wit, $1.50 for each. There was a concession that the plaintiff paid $1.50 per carboy. The plaintiff, in effect, offered to show “ that the amount that he was to get back was the same amount that he paid.” This was objected to by the defendant, and the objection was sustained, and an exception taken. Thereupon the defendant moved “ that plaintiff be nonsuited, and the complaint be dismissed, on the ground that there is no cause of action in the written contract, on the ground that it contains the whole agreement between the parties, and cannot be varied by paroi, and that, therefore, there is no-evidence in the case to sustain the allegations of the complaint.” The motion was granted, and the plaintiff excepted.

In Batterman v. Pierce, 3 Hill, 172, where an action was brought upon a note, it was held that:

“Paroi evidence that it was given for the price of goods sold, and that, at the time of the sale the plaintiff made a promise to the defendant in respect to the goods, which has been violated, is not objectionable as tending to alter, modify, or impeach the note.”

In Unger v. Jacobs, 7 Hun, 221, it was held that:

“ The law does not exclude paroi evidence to show the further "agreement of one party because that of the other has been reduced to writing. A written agreement having been signed by one-party, paroi evidence may be given of an agreement made by the other party, as a consideration of the written contract.”

In the course of the opinion in the case, it is said:

“ The instrument executed by the defendant was designed to-contain only the agreement made by him, which did not preclude him from showing what the plaintiffs had undertaken to do, by so-much of the agreement as was made on their part, for the purpose of securing the benefit of it to himself in this action.”

In Duparquet v. Knubel, 24 Hun, 653, an action was brought, to recover the price of a range placed by Armour in an hotel owned by the defendant. Armour leased the hotel from the defendant, and soon thereafter became dissatisfied with it, and made an arrangement by which he surrendered the premises, together with 'the range and other things, to the defendant, being indebted at that time to the plaintiffs for the purchase price of the range.. The surrender of the premises was in writing, and the instrument therefor “ related by its terms only to the surrender of the leasehold premises. As part-of the consideration inducing it, evidence was given tending to show that the defendant obligated himself to-pay to the tenant the sum of $200, and also to pay to the plaintiffs the debt owing to them for the price of the range.” And, in disposing of the case, the court said:

“ As no provision was inserted in the instrument by which the surrender of the premises was made for the disposition of the range-it was entirely consistent with all that was contained in it to show the existence of the agreement alleged to have been made for the payment to the plaintiffs." This was a new subject-matter, in noway whatever affected by or alluded to in the written agreement, ana in no respect in conflict with any stipulation or recital contained in it. For that reason, the plaintiffs' were at liberty to-show, as they endeavored to do by oral evidence, the existence of the agrefement forming the basis of their recovery in this action. Parol evidence may always be given under such circumstances for the purpose of proving a separate and incidental agreement, relating to matters neither contained in nor alluded to by the terms of a contemporaneous writing.”

Numerous authorities are cited in support of the proposition laid down, to which reference is hereby made.

In Briggs v. Hilton, 99 N. Y. 517, it was held, viz. :

“At the time of a negotiation between the parties for the sale by plaintiffs to defendants of certain goods, plaintiffs gave to defendants a writing, which acknowledged the receipt of an order for the goods, and stated a time of delivery and the price. Held, that defendants were not estopped thereby from proving paroi warranty as to quality; that the instrument could not be construed as being the whole contract between the parties, but was simply a memorandum; that even if it could be construed as embodying a part of the agreement, and so conclusive as to that part, oral evidence was competent to show the rest.”

That case was referred to with approval in Routledge v. Worthington, Co., 119 N. Y. 597; 30 St. Rep. 195, and in the latter case it is said:

“The rule which rejects paroi evidence, when offered with respect to a contract between parties and put into writing, has no application to. a case like this, where, of the original agreement which has been executed, a part only is in writing, and the rest was verbal.”

The opinion delivered in Woodard v. Foster, 64 Hun, 147 ; 45 St. Rep. 77, is in entire harmony with the cases to which we have just referred. In the case in hand the oral agreement did not controvert nor was it inconsistent with the written order. Chapin v. Dobson, 78 N. Y. 75; Juillard v Chaffee, 92 N. Y. 529.

In Thomas v. Scutt, 127 N. Y. 140; 38 St. Rep. 692, in the course of the opinion, it was said that collateral agreements may be shown “because they are separate, independent, and complete contracts, although relating to the same subject. They are allowed to be proved by parol because they were made by parol, add no part thereof committed to writing.”

We think the rulings at the trial were erroneous, and that the exceptions present errors which require a-reversal.

Judgment reversed on the exceptions, and a new trial ordered, □with costs to abide the event.

All concur.  