
    RICHARD R. DISBROW, Respondent v. SAMUEL E. HARRIS, Appellant.
    
      Contracts—Merger of former agreement in later—Provision of contract for sale of house to deliver in good condition—Effect on, of acceptance of deed with contemporaneous agreement providing only for certain items of work.
    
    Defendant, by an agreement in writing, agreed to sell plaintiff a certain house and lot, the house to be delivered in good condition, and the deed to be delivered on April 28, 1887. Defendant paid the earnest money; assumed a mortgage on the property, and when the deed was delivered, paid the cash balance of the purchase price, except $350, retained under the following agreement signed by both parties: “ On closing contract between Richard B. Disbrow [plaintiff] and Samuel E. Harris [defendant), 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.” Plaintiff, having completed sidewalks, etc., brought this action to recover the $300, unpaid on the contract. Defendant set up a counter claim founded upon an alleged failure to perform the agreement to deliver the house in good condition, on the 28th day of April, 1887, at the same time the deed was to be delivered.
    
      Held, upon consideration of the intent of the parties, gathered from the contents of all the instruments, the pleadings and evidence, that there was a merger of the preliminary contract of sale in the later instruments, which ■ the parties evidently designed as a complete performance of the entire original contract; and that the trial judge did not err in refusing evidence as to the bad condition of the premises, in support of the counterclaim.
    Before Truax and Dugro, JJ.
    
      Decided April 2, 1888.
    
      Appeal from a judgment entered upon a verdict directed ior the plaintiff.
    Action upon contract to recover $300 unpaid purchase money, retained by defendant until plaintiff should complete the walk and an iron gate, belonging to the house sold.
    The plaintiff, on March 28, 1887, by an agreement in writing, agreed to sell defendant a house in Ninety-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 the 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 $50 for gates (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: “ The party of the first ¡Dart (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 executed, but the defendant was not allowed to show by oral evidence that the premises conveyed were not then in good condition.
    
      Jacob F. Miller, for appellant:
    I. The contract between the parties contained a provision that the house then in process of construction should be delivered in good condition.
    II. This provision was not merged in the deed which was given by the plaintiff to the defendant. In Coke upon Lift., 338b, it is said: “ Mergers were never favored in courts of law and still less in courts of equity.” They are never allowed unless for special reasons and then only to preserve the intention of the parties. 15 Vin. 362A, 5; Phillips v. Phillips, 1 P. Wms. 44; Forbes v. Moffatt, 18 Ves. 389; James v. Johnson, 6 Johns. Ch. 417, 423; Atwood v. Carpenter, 27 Barb. 639-644. The plaintiff, by a contract in writing and under seal, agreed to deliver to the defendant a certain dwelling house, in good order, for the consideration in said contract expressed. The house was delivered and the consideration paid by the defendant. The consideration for the payment of the money is not entire and indivisible so that it is incapable of being apportioned by the jury. The defendant took the house, as he had a right to do, if he pleased, but it was not in good order. In other words, the consideration for the plaintiff’s covenant was divisable and the damages arising from the breach can be fixed by a jury. Broom v. Eyre, 1 H. Bl. 273, note a; Pardage v. Cole, 1 Saund. 320, n. The defendant could have maintained an action against the plaintiff for his breach of the agreement to “ deliver the house in good order,” without making any other averments. The plaintiff could not maintain an action for specific performance if the defendant had failed to pay purchase price, nor can he maintain this action without showing performance on his part of the said agreement. In this view it is not necessary to look beyond the agreement, to its performance, in order to ascertain its character. Pardage v. Cole, supra; Parmlee v. Oswego & Syracuse R. R. Co., 6 N. Y. 74. The defendant could have elected to rescind the contract on the day set for closing if he had known of the defects in the house complained of, if he had chosen to do so? The good condition of the house was a condition precedent. The following are leading authorities for defendant: Witbeck v. Waine, 16 N. Y. 532; Morris v. Whitcher, 20 N. Y. 41; Davis v. Lottich, 46 N. Y. 393; Murdock v. Gilchrist, 52 N. Y. 242; Smith v. Holbrook, 1 Sheldon 474. In Hill v. Syracuse, B. & N. Y. R. R. Co., 8 Hun 299, the court said : “ Courts do not favor the doctrine of merger where it would violate the intention of the parties, and work injustice.” See also McGregor v. Board of Education, Daily Reg., Jany. 23, 1888.
    TIT. It was incumbent upon the plaintiff to show affirmatively that it was intended by the parties that the deed. should be regarded as a complete execution of the contract. The defendant had made out a prima facie case. The burden of proof was thereupon shifted to the plaintiff. See foregoing cases.
    IV. The fact of plaintiff’s imprisonment could be shown by himself. It was not necessary to produce the record of conviction. § 832, Code Civ. Proc.
    
    V. The defects complained of were all concealed, and could not have been detected without extended and expert examination. The plaintiff at the time of delivery of the deed represented to the defendant that the work which he had promised to do had been done. The defendant had a right to rely upon those representations that the conditions of the contract had been performed. The plaintiff himself does not claim that this work had all been done even at this time. The defendant’s offer to show the condition of the premises should have been allowed, since it tended to prove a breach of this contract. Otherwise the plaintiff is getting an advantage from his own wrong. Furthermore, the defendant took all precautions to find out the defects. The law does not demand impossibilities. Lex non cogit ad impossibilia. Broom's Legal Maxims, p. 242.
    
      R. P. Lee, attorney, and Frederic W. Hinrichs of counsel, for respondent.
   By the Court.—Dugro, J.

(after stating the facts, as above)—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 he 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.” Now 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 later written agreement can fairly be supposed as designed by the parties to be a comnlete 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 case 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.

1 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 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. 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.

-Nothing inconsistent with the assumption of a complete performance of the original agreement is apparent from the two later instruments. Reference is made in them to all the matters upon which the preliminary 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 covenants 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 representation of the plaintiff. If so, no right which he may have to recover damages 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 familiar rule, that oral evidence is inadmissible to contradict, supplement or vary the terms of a written contract.

Neither § 832 of the Code of Civil Procedure nor any other rule of law, warranted the exception taken to the ruling sustaining the objection to the question, “Have you been arrested in connection with the building of this house.” Arrest is not conviction.

Judgment affirmed.

Truax, J., concurred.  