
    Jennings, as administrator, etc., v. Osborne.
    
      (New York Common Pleas,
    
    
      General Term,
    
    
      Filed June 7, 1886.)
    
    1. Bills amd motes—Plea of payment—What pboof will supfobt.
    The plea of payment can he supported only by proof of payment in money or its equivalent, and npt by any special arrangement growing out of independent contracts not pleaded.
    
      3. Same—Practice—When motion to strike out in time—Parol evidence INADMISSIBLE TO VARY WRITTEN CONTRACT,
    There was a written contract between the intestate and defendant, and oral testimony was admitted without objection to contradict the writing; afterwards the written contract was put in evidence, and at the close of the testimony plaintiff moved to strike out all testimony at variance with the written agreement: Held, that the motion was not too late, and also that it wat error for the judge not to charge the jury to disregard the parol evidence when requested.
    Appeal from a judgment of the general term of the city court, affirming a judgment entered upon the verdict of a jury in favor of the defendant and affirming an order denying a motion for a new trial on the judge’s minutes.
   Bookstaver, J.

The action was brought on two promissory notes made by defendant; one for $500, dated September 8, 1884, and the other for $1,000, dated October 18, 1884; both payable on demand and to the order of plaintiff’s intestate. The answer admits the making of the notes and their delivery to John Jennings, the intestate, and as a defense to each note sets up “that said note has been fully paid, long before the commencement of this action.” The action has been twice tried before a jury, and on each trial a verdict was rendered in favor of the defendant. From the first judgment an appeal was taken to the general term of the city court and a new trial ordered, on the ground that on that trial “the defendant was allowed to prove, under objection and exception, that the intestate had agreed to do certain contract work for $14,500; that he ■ afterwards added $2,000 to the price, which was to come from a Mr. Taylor, who was advancing money on the property, and that this additional $2,000 was to go to the defendant; or was to satisfy notes for that amount, representing moneys loaned by the intestate, in his life-time to the defendant.

“ The written contract between the intestate and the defendant called for $16,500; and the oral testimony offered not only contradicted the writing (which in itself seems improper), but what is more objectionable, the facts proved were not pleaded.”

Upon the second trial, precisely the same evidence, by the same witness, was admitted without objection. But after the written contract was put in evidence and at the close of the testimony plaintiff’s counsel moved to strike out all testimony at variance with the written agreement, which was granted in part only. Plaintiff’s counsel then moved the court to direct a verdict for the plaintiff on the ground that there was no evidence of payment of any money, which was denied, and plaintiff excepted.

He also requested the court to charge:

First. “That the jury must disregard the testimony of the witness Dey, as to the agreement sworn to by him; that the payment was made by the contract of September 15th, 1884, having $2,000 in addition to the $14,500;” and,

Second. “That to prove payment there must be a payment in money or its equivalent.”

The court refused to charge either request, and plaintiff’s counsel excepted.

While it is true that a plea of payment can be supported only by the proof of payment in money or its equivalent, and not by any special arrangement growing out of independent contracts not pleaded, yet if that were the only difficulty in this case we think it might be cured under the ample powers of amendment provided by section Y23 of the Oivil Code, especially in view of the fact that plaintiff’s counsel allowed the testimony to be given in evidence without objection, although he must have known of the written contract at the time.

But the learned justice, in denying the motion for a new trial in this action, said the “evidence did in fact contradict the writing and would, if objected to, be inadmissible;” and held that because it was not objected to at the time it was boo late to make it afterwards.

This may.he granted, but after the written contract was introduced in evidence by defendant, plaintiff’s counsel moved to strike out the parol evidence at variance with the contract which the court refused to do; and he also requested the court to charge the jury to disregard the parol evidence, which it refused to do; and to which refusal plaintiff’s counsel excepted.

We think this was error; the parol evidence was given before the written contract was introduced. In Dunn v. Hewitt (2 Denio, 638), parol evidence had been given of the contract; and it afterwards appeared that the agreement was in writing, when a motion was made to strike out the parol evidence, which was denied. On appeal, the court said: “The next question is, whether the justice erred in refusing to strike out the parol evidence of a contract % I think he did. It is well settled that whenever it turns out either in the direct or cross-examination that a writing exists with regard to a transaction which the law regards as the best evidence,_ it must be produced, or its absence accounted for. If this is not done, all inferior evidence that may have been given will be stricken out and disregarded.” In Southwick v. Hayden (7 Cow., 334), it was held that “though a plaintiff goes through with his proof without objection and rests his cause, if, among other things, he has proved, by parol, a piece of written evidence which should be produced, it is not too late to object that the writing should be produced.” See, also, Hatch v. Pryor, 3 Keyes, 441.

As before shown, the learned justice admits the parol' evidence did, in fact, contradict the writing. He, however, claims this rule is not inflexible, but has referred to no authority to sustain his position; and we know of none. The contrary doctrine we believe to be fundamental law, and we think there is no exception to it, when the action is between the parties to the contract or their privies. 1 Green, on Evid., § 275 and sea.; Booman v. Johnson, 12 Wend., 573; Wilson v. Dean, 74 N. Y., 531; Thorp v. Ross, 2 Abb. Ct. App., Dec., 416.

The latter case is very instructive, and we think decisive of this.

Many other authorities might be cited in support of our position, but they are unnecessary.

If parol evidence is ever allowed to vary a written contract, it should be when both parties to the contract are alive and can be heard in court, and. not, as in this case, when one is dead. •

, We infer from the evidence that both notes have in reality been paid; if so, some legal means can be found to prove this by reforming the contract or otherwise; but if there cannot, it is better that one should suffer by ¿¡¡Bason of his1 own negligence in not taking up the notes when paid than that a rule of law so well established and salutory should be violated.

Having arrived at the conclusion that the court erred in refusing plaintiff’s first request to charge, it is not necessary at this time to examine the other questions raised by this appeal.

Judgment reversed and a new trial ordered, with costs to avide event.

Allen, J., concurring.  