
    NATIONAL DRILL & MFG. CO. v. MAHER.
    (Supreme Court, Appellate Term.
    February 27, 1906.)
    Evidence—Paeol Evidence—Contbact oe Sale.
    Instruments in the form of notes containing an agreement that the title of the goods for which the notes were given and the right of possession should not pass from the payee until the notes were paid, were not complete contracts of sale such as to exclude parol evidence that a warranty attended the sale of the goods.
    [Ed. Note.—For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 1878-1889.]
    
      Appeal from Municipal Court, Borough of Manhattan, First District.
    Action by the National Drill & Manufacturing Company against Michael Maher. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Argued before SCOTT, P. J., and GIEGERICH and GREEN-BAUM, JJ.
    William F. Clare, for appellant.
    Wilber, Hart, Norman & Kahn, for respondent.
   SCOTT, P. J.

This is an action upon two instruments in the form of promissory notes, which contain in the body an agreement that the title of the goods, for which the note was given, and the right of possession should not pass from the payee until the notes were paid. The notes are dated in this state, and the complaint alleges that the plaintiff is a foreign corporation, and has “duly complied with all the requirements of the corporation law of the state of New York.” This averment is put in issue by a denial in the answer. The defendant by a separate defense sets up a breach of warranty, and also counterclaims for damages for such breach of warranty. On the trial the counterclaim was withdrawn. The defendant attempted, to prove that a warranty attended the sale of the chattels, but was not permitted to offer any evidence on this subject; the court apparently considering that to admit such evidence would be violative of the general rule that parol evidence may not be adduced to vary the terms of a written instrument.

This view was erroneous. The papers sued upon were not complete contracts of sale, and did not purport to be such. The rule is perfectly well settled that when a written instrument does not purport to express the whole contract between the parties, but only one part or side thereof, parol evidence may be received to supply those terms of the contract not embraced in the writing; and this rule has frequently been applied to permit parol proof of a verbal warranty, where some of the terms of sale have been reduced to written form.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.  