
    Thomas J. Reynolds, Resp’t, v. Thomas Robinson et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed October 2, 1888.)
    
    1. Evidence—When paroi evidence admissible to vary written contract.
    Parol evidence is admissible to show that a written paper, which in form, is a complete contract, of which there has been a manual tradition, was nevertheless not to become a binding contract until the performance of some condition precedent resting in paroi.
    2. Same—Rule cautiously applied and strictly confined.
    This rule should be cautiously applied to avoid mistake or imposition, and confined strictly to cases clearly within its reason. .
    Appeal from a judgment of the supreme court, general term, fifth department, reversing a judgment in favor of the defendant, entered upon the report of a referee.
    The action was brought to recover damages alleged to Rave arisen out of a contract, alleged to have been made by the defendants, to sell to the plaintiffs a quantity of lumber on credit, and which they afterwards refused to do, except for cash. The contract was contained in a written correspence between the parties. Upon the trial of the action, the referee found that the agreement was made in writing by letters passing between the parties, by the terms of which the plaintiff was to pay for the amount of lumber delivered each month on or before the twentieth day of the following month. Upon the trial the referee received oral testimony tending to show that before the letters were written, it was agreed, that the defendants should make inquiries at the commercial agencies as to the plaintiff’s pecuniary responsibility, and the sale and delivery of the lumber should be contingent upon a satisfactory report from them, that such report was unsatisfactory, and the defendants for that reason refused to fulfill the contract.
    
      Tracy C. Becker, for app’lts; E. A. Nash, for resp’t.
    
      
       Reversing 37 Hun, 561.
    
   Andrews, J.

The finding of the referee, which is supported by evidence, to the effect that the contract for the purchase and sale of the lumber on credit, contained in the correspondence between the parties, proceeded upon a contemporaneous oral understanding that the obligation of the defendants to sell and deliver was contingent upon their

obtaining satisfactory reports from the commercial agencies, as to the pecuniary responsibility of the plaintiff, brings-the case within an exception to' the general rule that a. written contract cannot be varied by paroi evidence, or rather it brings the case within the rule now well established that paroi evidence is admissible to show that a written paper, which in form is a complete contract, of which there has been a manual tradition, was nevertheless not to become a binding contract until the performance of some condition precedent resting in paroi. Pym v. Campbell, 6 El & Bl., 370; Wallis v. Littell, 11 C. B., 369; Wilson v. Powers, 131 Mass., 539; Seymour v. Cowing, 4 Abb. Ct. App. Dec., 200; Benton v. Martin, 52 N. Y., 570; Julliard v. Chaffee, 92 id., 535, and cases cited; Taylor’s Ev., §1038; Stephens’ Dig. Ev., § 927).

Upon this ground we think the evidence of the paroi understanding, and also that the reports of the agencies were unsatisfactory, was properly admitted by the referee and. sustained his report, and that the general term erred in reversing his judgment. It' is, perhaps, needless to say that-such a defense is subject to suspicion, and that the rule stated should be cautiously applied to avoid mistake or imposition, and confined strictly to cases clearly within its reason.

The order of the general term should be reversed and the-judgment on the report of the referee affirmed.

All concur.  