
    BENJAMIN HAGUE, Plaintiff, v. OWEN O’CONNER, Defendant.
    Proof of a parol agreement between a plaintiff and a defendant to the effect that, in case plaintiff would procure certain lands of the defendant to be sold, or would find a market lor the same, at an aggregate price of not less than a certain sum named by the defendant, the defendant would sell the lands for said price and pay to the plaintiff for his services one half of the excess, which the plaintiff would procure to be given over and above the sum named by the defendant,” followed up by further proof showing full perforihance on the part of the plaintiff at a price exceeding the limit named by the defendant and a subsequent refusal of the defendant to convey, is sufficient to entitle the plaintiff to recover his compensation, as agreed upon.
    Before Monell, Jones, and Freedman, JJ.
    
      [Decided July 2, 1869.]
    This case was tried before Chief-Justice Barbour and a jury.
    The action was upon a parol agreement made and entered into between the plaintiff and the defendant in about the month of September, 1867, to the effect that in case plaintiff would procure certain lands of the defendant to be sold, or would find a market for the same, at an aggregate price of not less than seventeen thousand dollars, the defendant would sell the lands for said price, and pay to the plaintiff for Ms services one half of the excess wMch the plaintiff could procure to be given over and above the said aggregate sum. The evidence further showed that, in pursuance of the agreement, the plaintiff appraised the property, divided it into lots, made a map, and estimated the price of each lot; that he submitted the map and appraisement to the defendant, who approved of it as made; that plaintiff thereupon got circulars printed, and went round with them, and finally procured purchasers for all the lots at the aggregate price of eighteen thousand four hundred and seventy-five dollars ; that Thursday evening, the 13th of February, 1868, was appointed between the parties and the purchasers as the time, and Farmers’ Institute as the place, for the delivery of the deeds, and that a meeting of all parties took place accordingly. It appeared, however, that the defendant, not having the deeds ready for delivery at the appointed time and place, applied for and obtained an adjournment until the following Tuesday, February 18, 1868, but that at the same time he commended the plaintiff for the manner in which the latter had managed the business, and informed the purchasers that the plaintiff was not to blame for the delay. On the 18th another meeting of the plaintiff and the purchasers took place pursuant to adjournment, but the defendant did not appear, and again made default in the delivery of the deeds.
    The Court dismissed the complaint, and ordered the exceptions to be heard in the first instance at General Term.
    
      Mr. Albert Roberts for plaintiff.
    The Justice erred in allowing the paper dated February 19, 1868, referred to in the answer as a contract, to be admitted in evidence.
    On its face that paper was never made till more than five months after the agreement set forth in the complaint, nor, as the evidence previously introduced conclusively showed, until after there had been two breaches by defendant of the entire parol agreement of the previous September, upon which the action was founded.
    It was not pleaded in such a way in the answer as to be admissible at all as the evidence then stood.
    It was no evidence that the defendant did not make the agreement alleged in the complaint; it was not pleaded as a set-off, nor as a counterclaim, nor a release, nor an accord and satisfaction, nor as a substituted or modified agreement.
    The writing so admitted in evidence did not tend to prove either an estoppel or a waiver of the right of action already substantiated.
    Where a right of action has accrued for the breach of an agreement, such right can only be destroyed by a release under 
      
      seal, or by the acceptance of something in satisfaction of the injury (Allaire v. Whitney, 1 Hill, 488; Barbour v. Rose, 5 id., 76-78; Bowman v. Teall, 23 Wend., 306-9; Willoughby v. Backhouse, 2 Barn. & Cress., 821; McKnight v. Dunlap, 5 N. Y. Rep., 537). /
    The instrument offered in evidence by the defence was without consideration, and void.
    
      Mr. Charles D. Ingersoll for defendant.
    The written agreement of February 19, 1868, entered into by the plaintiff, was a substitute for the stipulations contained in the previous communications between the parties. This agreement covers the whole subject of these prior parol stipulations and agreements, and all those prior agreements are merged in the written one, which becomes the only contract between the parties, and no action can be maintained except on the writtén contract (Renard v. Sampson, 12 N. Y., 561; Phillips on Evidence, vol. 2, 665).
    H the plaintiff, in the absence of the written contract, would have had any cause of action against the defendant, he must be regarded as having waived the same by entering into the written contract (Van Buskirk v. Stow, 42 Barb., 9; Hart v. Bauman, 29 Barb., 410 ; Meech v. City of Buffalo, 29 N. Y., 198, per Johnson, J., pp. 218-219; Munroe v. Perkins, 9 Pickering, 298).
    The objection to the admission of the written contract of February 19 in evidence was properly overruled.
    It was the only contract between the parties, it having superseded all previous stipulations.
   By the Court:

Freedman, J.

Upon the facts in the case I think the plaintiff is entitled to recover his compensation as agreed upon. I am of the opinion that he has shown a perfect cause of action, which could not be defeated by the introduction by defendant’s counsel, upon plaintiff’s cross-examination and against plaintiff’s objection, of a new agreement, alleged to have been made by plaintiff on the day after the second default of the defendant, for the i'eason, amongst others, that the evidence, as it stands, shows that the plaintiff was induced by the defendant to sign it upon the representation and in the belief that it related solely to an allowance by plaintiff to defendant of five per cent, out of his share of the profits, and that the plaintiff did not know or suspect it to contain anything else.

The plaintiff’s exception to the order dismissing his complaint should be sustained, and the said order of dismissal should be reversed and a new trial granted, with costs to abide the event.  