
    Richard R. Disbrow, Resp’t, v. Samuel E. Harris, App’lt.
    
      (New York Superior Court, General Term,
    
    
      Filed April 2, 1888.)
    
    1. Deed—Merger—Contract of bade merged in deed.
    Where the original contract for the sale of land contained the following provision “ The party of the first part (plaintiff) shall deliver said house in good condition and put in three new grates * * * which deed shall be delivered on ” etc When the deed was delivered the following was signed by both parties. “On closing contract between - * * there has been allowed to Mr. Harris $50 for grates (not in) and Mr. Harris has retained $300 to secure completion of sidewalks and iron gate on stoop, and when done said Disbrow is to receive the $300.” Held, that the parties intended that the delivery of the deed and signing of the latter instrument should be a complete and final settlement of the transaction between them. That the rule that when a deed is accepted the original contract is merged, applied.
    2. Same—When there is not a merger—Evidence.
    Where there are stipulations in a prelimLary contract for the sale of land, of which the conveyance itself is not a performance, the true question must be, whether the parties have intentionally surrendered the stipulations. The evidence of that intention may exist in or out of the deed or contract between the parties. If plainly to be gathered from a consideration of the entire contents of the instrument, the evidence is decisive.
    
      3. ■ Same—Collateral covenant—When enforced. .
    Parties may enter into a covenant collateral to the deed, and cases may arise in which the deed would be regarded as only a part performance of the contract where the provisions of the instruments clearly manifest such to have been the intention of the parties.
    
      Jacob F. Miller, for appp’lt; R. P Lee and Fred. W. Hinrichs,. for resp’t.
   Dugro, J.

This is an appeal from a judgment entered upon a verdict directed for the plaintiff.

The plaintiff, on March 28, 1887, by an agreement in -writing, agreed to sell defendant a house in Twenty-seventh street, for $21,000. Defendant paid the earnest money, assumed a mortgage on the property, and when the deed was delivered, paid the cash balance still due, with the exception of $350, which he retained, and at the same time tne" .agreement following was signed by both parties:

On closing contract between Richard B. Disbrow and Samuel E. Harris, there has been allowed to Mr. Harris fifty dollars for grates (not in), and Mr. Harris has retained $300 to secure completion of sidewalks and iron gate on stoop, and when done, said Disbrow is to receive the $300.”

The original contract of sale contained the following provisions:

‘1 The party of the first part (the plaintiff) shall deliver ■said house in good condition, and put in three new grates * * * which deed shall be delivered on the 28th day of April, 1887, at 12 o’clock m.”

At the trial, proof was allowed of what was done at the time of the closing of the contract, when the deed was delivered and the agreement above set forth was executed. But the defendant was not allowed to show by oral evidence that the premises conveyed were not then in good condition.

The question to be determined on this appeal is, whether the court was justified at the trial in holding that the preliminary contract .of sale became merged in the later instruments. This question is one of construction as to the intent of the parties, to be gathered from a consideration of the entire contents of all the instruments, if this be possible.

That in the case under consideration it was the intention of the parties that the house should be delivered in good condition at the time fixed for the delivery of the deed, seems evident. The defendant undoubtedly so understood the agreement to be, for in his answer he says : “On March 28, 1887, he (defendant), exacted from the plaintiff an agreement, and the plaintiff agreed to deliver said house in good condition, and to do so on the 28th day of April, 1887."’ How as it was intended that the delivery of the house in good condition should be contemporaneous with the delivery of the deed, the provisions of the preliminary contract looked to a complete performance by both parties at the time fixed for the closing of the contract, and therefore, the delivery and acceptance of the deed, and the execution of the latter written agreement can fairly be supposed as designed by the parties to be a complete execution and consummation of the entire original contract, and accepted as such. It certainly would be unreasonable to suppose that it was the intention of the parties that something further should be done by either, than as provided by the instruments last executed. The learned chief justice was fully justified in inferring from all the circumstances of the cáse, that the parties intended these instruments to be a complete and final settlement of the transaction between them, and his application of the general rule, that when a deed is accepted the original contract is merged, was proper.

I take it to be the rule of law that even where there are stipulations in a preliminary contract for the sale of land of which the conveyance itself is not a performance, the true question must be whether the parties have intentionally surrendered the stipulations ; the evidence of that intention may exist in and out of the deed or contract between parties. It is plainly to be gathered from a consideration of the entire contents of the instruments, the evidence is decisive. Although the case under consideration may not be such an one as properly calls for the application of this rule, yet (even so) it is plainly to be gathered from a -consideration of the contents of all the instruments in evidence that the provisions of the contract of sale were intended to be merged in the deed and contemporaneous agreement upon their delivery.

• Hothing inconsistent with the assumption of a complete performance of the original agreement is apparent from the two late instruments. Reference is made in them to all the matters upon which the prehminary contract bears, and aside from the instruments and pleadings that the defendant expected and required a complete performance at the time of closing the contract appears from his own testimony. He says: “I took the title on Mr. Disbrow’s assurance that the work had been done, otherwise I would not have taken that title.”

The defendant neither requested nor was he refused an ■opportunity to examine the house. He appears to have relied partly on the representations of the plaintiff and partly ■on information otherwise obtained in determining its condition, and only when he was satisfied of its condition so far as he deemed necessary, did he close the matter.

Parties may enter into covenant collateral to the deed and cases may arise in which the deed would be regarded as only a part performance of the contract where the provisions of the instruments clearly manifest such to have been the intention of the parties; but it cannot be fairly claimed that such an intention is indicated by the instruments in evidence, or by the circumstances of the present case.

The plaintiff may have been induced to accept the deed and enter into the later agreement by false representations of the plaintiff.- If so, no right which he may have to recover damage sustained by reason of such representations is prejudiced by the judgment appealed from.

_ The rulings of the learned chief justice upon the admission of evidence were proper applications of the familar rule, that oral evidence is inadmissible to contradict, supplement, or vary the terms of a written contract.

Neither section 832 of the Code of Civil Pro., or any other rule of law warranted the exception taken to the ruling sustaining the objection of the question, Have you been arrested in connection with the building of the house?’* Arrest is not conviction.

Judgment affirmed.

Trttax. J.,  