
    John N. Williamson, Respondent, v. John A. Seely, Appellant.
    
      Parol evidence is inadmissible to vary a written agreement — conversion — when a demand must be made—proof that a letter was mailed and received.
    
    The holder of a contract authorizing him to furnish electric light to a town, entered into a written agreement with the person to whom he assigned the contract, by the terms of which he agreed to superintend for one year the performance of the contract with the town, “ for no other compensation; that is to say, the manufacture and furnishing of light in accordance with the terms of the aforesaid contract, and to use his best efforts to properly and successfully perform the same.”
    In an action brought by the assignor of the contract to recover of the assignee the amount of a note which was given by the assignee as part of the consideration for the assignment, it was
    
      Held,, that the defendant was not entitled (no fraud being alleged) to prove, as a counterclaim, the breach of an alleged oral agreement entered into prior to the written agreement, whereby the plaintiff guaranteed that the expense of operating the electric light plant should not exceed §250 per month;
    That such agreement was inconsistent with, and contradictory of, the written contract.
    Where a person takes possession of personal property belonging to another, for the purpose of preserving it for the owner, a demand and refusal are necessary before he can be held liable as for a conversion thereof.
    Where a person testifies on the trial of an action that he wrote another person á letter, and the latter, although sworn as a witness upon the trial, does not deny the statement, the court, although no actual proof of mailing is made, is warranted in finding that the letter was mailed to, and received by, the person to whom it was sent.
    Appeal by the defendant, John A. Seely, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 24th day of Juné, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of July, 1897, denying the defendant’s motion for a new trial.
    
      Edward 8. 8eidman, for the appellant.
    
      Joseph Fitch, for the respondent.
   Goodrich, P. J.:

The plaintiff had obtained from the town of Hempstead a contract to furnish electric lighting in a part of the town known as the Bockawav Beach Lighting District. In June, 1896, he entered into a written contract with the defendant by which he assigned this contract to the defendant for $1,500 in cash, the defendant’s note for $1,750 and certain orders upon the Hempstead authorities. The plaintiff agreed to become manager for the defendant and run the plant for a year without salary. This action is brought to recover the amount of the note.

The defendant, by supplemental answer, set up two counterclaims: First. That, in consideration of the written contract, the plaintiff “promised this defendant that the cost of running the said dynamo so as to furnish the light * * * would be $250 per month,” and that he would manage it so that the cost should be that sum, but that the cost proved to be $500 per month; that the defendant bought materials and apparatus for running the plant, which, through the plaintiff’s breach of his contract, had become worthless. Second. That the plaintiff, in violation of his duties as manager, had taken away and converted certain other property of the defendant of the value of $1,410.

Under the first counterclaim the defendant offered evidence to show a collateral and oral contract not contained in the written agreement. It is well settled that in order to bring a case within the rule admitting parol evidence to complete an entire agreement of which a writing is only a part, two things are essential — the writing must not appear upon inspection to be a complete contract, and the joarol evidence must be consistent witli and not contradictory to the written instrument. (Thomas v. Scutt, 127 N. Y. 133.) We have also the ordinary rule that where a contract is consummated by a writing the presumption of law is that the written instrument contains the whole of it. (Filkins v. Whyland, 21 N. Y. 338.) To this must be added, in the present case, a further presumption as to the intention of the parties. We have a written and formally drawn instrument under seal, executed in the presence of Mr. Warner, the attorney for the defendant in this action. It may be assumed, I think, that the rights of the defendant were carefully guarded with a zeal that is evidenced by his elaborate-brief on this appeal.

With these presumptions in mind, we arrive at the defendant’s exception to the exclusion of evidence to show another and additional contract by which the plaintiff guaranteed that the plant would be run at an expense of $250 per month. There was no allegation of fraud in the transaction. The defendant testified that the contract upon which he relied and the conversation by which he sought to prove it occurred before the written agreement of June twentieth. Yet there was in the contract the clause by which the plaintiff agreed to “ superintend and manage the performance of the aforesaid contract for the term of one year from the date hereof and for no other compensation ; that is to say, the manufacture and furnishing of light in accordance with the terms of the aforesaid contract, and to use his best endeavors to properly and successfully perform the same.” Here was an agreement on the identical subject of the additional contract which the defendant was attempting to prove. The only matter which the defendant claims was omitted was a guaranty of the expense of the plaintiff’s administration of the plant. It can hardly be possible to draw a distinction which will remove this offer of evidence from' the principles laid down in the case of Thomas v. Scutt, already cited. Indeed, it would seem to appear affirmatively not only that the writing, upon inspection, does appear to be a complete contract, but also that the parol evidence offered would be inconsistent with it and contradictory thereof.

The second counterclaim was based on an allegation that the plaintiff had converted some . of the defendant’s property. It appears that the defendant was the owner of a boiler and engine which were in a building at Eockaway Beach in which the receiver of another company was operating another plant. The receiver was a tenant of one Meyers, and the defendant a sub-tenant of the receiver, who was dispossessed by the landlord for non-payment of rent. The defendant had purchased a dynamo and some other articles used in the operation of the plant which he had set up on the premises, and after the receiver was dispossessed the plaintiff removed this property to his own premises for its protection and care. Notice of this was sent to the defendant and no demand by him for the return of the property was proved. The articles were sold by the sheriff under an execution against the defendant. Under such circumstances, a demand for the return of the property was an essential element of the defendant’s right to recover. The true rule as to demand is stated in Castle v. Corn Exchange Bank (75 Hun, 89, 93):

“ In view of the authorities, we must regard it as settled law that one who comes lawfully in possession of property is not liable for conversion until after demand and refusal. (Gillet v. Roberts, 57 N. Y. 28; 2 Bouv. Inst. §§ 3530, 3531, 3528.) In the last section (3528) it is said : ‘ When the conversion is direct, as by an unlegal taking under a wrongful assumption of property, or a misuse of the ■chattel, we have seen that the conversion is complete without a demand; but to maintain trover for an indirect conversion, a demand is in general indispensable, because the defendant being lawfully in possession of the goods, there is no conversion before he assumes a property in them.’ ”

So in Scofield v. Whitelegge (49 N. Y. 259) and in Treat v. Hathorn (3 Hun, 646) it was held that where the plaintiff’s case depended upon a wrongful detention without a wrongful taking, a demand and refusal is necessary.

In Boyce v. Brockway (31 N. Y. 490) it was held that where the defendant, at Catskill, received property in good faith and stored it in his warehouse, such act was not the exercise of such dominion over it as would amount to a conversion without proof of a demand and refusal: but that when he afterward affirmatively treated the article as liis own and shipped it to New York for sale, lie did assume dominion over it.

In the case at bar there was ample evidence to show that the possession was not hostile to, but in protection of, the rights and property of the defendant, and a demand and refusal were requisite to enable the defendant to recover. There was no offer of any such evidence. On the contrary, the plaintiff wrote the defendant a letter, notifying him that he was about to be dispossessed, and, after the dispossession had taken place, another letter notifying him of that fact and asking what he should do. It is true that the plaintiff did not, in so many words, testify that the letter was actually mailed, but no objection was made on that account. The letter was demanded at the trial, but it was not produced. Nor did the defendant, though a witness, testify that he had not received it. In Oregon S. S. Co. v. Otis (100 N. Y. 446) the court held similar testimony sufficient to warrant a finding that a letter had been mailed to and received by the person to whom it was sent.

We have carefully examined the other exceptions, but discover no error in the rulings of the learned justice at the Trial Term.

The judgment must be affirmed.

All concurred.

Judgment and order affirmed, with costs.  