
    Blewitt v. Boorum et al.
    
    
      (Superior Court of New York City, General Term.
    
    May 4, 1891.)
    Parol Evidence—Delivery of Sealed Instrument.
    In an action upon a contract under seal, conveying the right to manufacture and sell a patented article, defendants offered evidence to show that the delivery of the same was qualified by a verbal condition. Held, that the rule excluding paroi evidence of a conditional delivery of a contract under seal is confined to instruments for the conveyance of land, and that the evidence offered by the defendants was properly admitted.
    Appeal from special term.
    Action by Alfred Blewitt against William H. Boorum and George L. Pease upon a contract. The plaintiff appeals from a judgment dismissing the complaint after trial.
    Argued before Freedman, Truax, and McAdam, JJ.
    
      
      Isaac N. Miller, for appellant. Putney, Bishop & Slade, (James L. Bishop, of counsel,) for respondents.
   Freedman, J.

There is no certificate or statement that the case contains all the evidence. The facts, therefore, are not open for review, and only questions of law can be considered. The contract sued on was made by William A. Russell and the plaintiff as parties of the first part, and the defendants as parties of the second part. By it the parties of the first part granted to the parties of the second part the full and exclusive right and license to manufacture, sell, and use a certain invention covered by a patent issued to Russell during the term of the patent; and, as consideration for such grant, the parties of the second part (the defendants) agreed to manufacture the patented article, and to pay to each of the parties of the first part the sum of 2§ cents on each binder as royalty. The agreement was executed by ail the parties under their respective hands and seals, and it was actually delivered to the plaintiff. The answer admits the making of the contract sued on, and alleges, as a defense, that it was agreed between the parties at the time of the making of the contract that the same was to take effect as to the plaintiff only when he should have acquired a one-half interest in the patent by performance of a certain agreement that he (the plaintiff) had made with Russell, the other party of the first part to the contract in suit, whereby the plaintiff was to acquire from Russell a one-half interest in the patent; that the plaintiff never carried out such agreement with Russell, never acquired a half interest from Russell, and subsequently abandoned all attempt to obtain a half interest in such patent, and relinquished and transferred to Russell all his right, title, and interest under the contract. At the trial there was no controversy as to the actual delivery of the contract, or a copy of it, to the plaintiff, but the defendants offered to prove the oral agreement between the parties as above stated, and that the plaintiff had failed to acquire from Russell a one-half interest in the patent. The plaintiff duly objected to such evidence as inadmissible, but the court overruled the objection, and reviewed the evidence, to which ruling the plaintiff duly excepted. Upon the evidence thus received the court found, as a fact, that at the time of the execution of the contract sued upon it was expressly agreed between the parties thereto that the same was not to take effect as a contract, until the plaintiff should have acquired a one-half interest in the patented improvement and letters patent in pursuance of the agreement between plaintiff and Russell, and that the plaintiff did not at any time acquire such half interest. The court also found as a fact that the contract was never delivered to the plaintiff as a subsisting legal obligation. These findings are fatal to plaintiff’s case, if the evidence upon which they rest was admissible, and the only question presented, therefore, is whether or not it was error to receive such evidence. It is settled in this state that if a deed is delivered to a party or liis authorized agent, and not to a stranger, it is absolute, and paroi evidence of conditions qualifying the delivery is inadmissible. Worrall v. Munn, 5 N. Y. 229, and eases there cited. It is also settled that paroi evidence is admissible to show that a written paper not under seal, which in form is a complete contract, of which there had been a manual tradition, was nevertheless not to become a binding contract until the performance of some condition resting in paroi. Reynolds v. Robinson, 18 N. E. Rep. 127; Harnickell v. Insurance Co., 111 N. Y. 390, 18 N. E. Rep. 632. It remains to be seen what the rule is as to an instrument under seal which is not a deed, and does not relate to the transfer of the possession of land. Upon this point great confusion exists in the books. Formerly the tendency undoubtedly was to distinguish generally between sealed and unsealed instruments. Of late, the tendency has been to disregard the distinction between sealed and unsealed instruments, whenever it can be done without a violation of some settled principle of law. The precise point now under consideration has never been put at rest. In Dietz v. Farish, 79 N. Y. 520, Church, C. J., even says with reference to a deed: “The court in Kidner v. Keith, 109 E. C. L. 34, announced the well-established rule. It said: ‘ There is no doubt, in point of law, that where, by express declaration, or from the •circumstances, it appears that the delivery of a deed was not intended to be absolute, but that the deed was not to take effect until.some contemplated event should have happened, the deed is not a complete and perfect deed until that event has happened.’” A review of all the cases to which our attention has been called upon this point would serve no useful purpose. Suffice it to say that a careful analysis of them, with reference to the state of facts peculiar to each, shows that the contusion which does exist arises not so much from the decisions as from dicta which are obiter, and that the strict enforcement of the rule which rejects paroi evidence qualifying the delivery has been almost exclusively in cases of instruments under seal, in which the delivery of the instrument constituted or involved a symbolic transfer of the possession of land. After due consideration of all that has been urged on both sides, I am of the 'Opinion that the rule prohibiting paroi evidence as to a qualified or conditional delivery should be confined to the class of instruments last referred to, and that it should not be extended generally to all executory contracts under seal. If this view is sound, the evidence in this case was properly admitted, and the exceptions taken by the plaintiff are untenable. The judgment should be affirméd, with costs. All concur.  