
    Andrew H. Hamblen, Respondent, v. Lewis German, Appellant.
    
      Oral agreement contemporaneous with a written contract — when it may be proved — delivery of a life insurance certificate in accordance with an oral agreement, not disturbed although the oral agreement be illegal..
    
    The general rule that no oral prior or contemporaneous agreement can he received in evidence to impeach, vary or in any way affect the terms of a written contract, is subject to the qualification that any independent fact or collateral parol agreement, whether contemporaneous with or preliminary to the main contract in writing, may be proved, provided' it does not interfere with the terms of the written contract, though it may relate to the same subject-matter.
    Andrew H. Hamblen and his wife executed a written agreement, by which they agreed to give to Lewis German all the property which they then had and to will to him all the property which they might have at their death, in consideration of German’s agreement to pay Hamblen’s debts and to support him and his wife until their death.
    At the time of the execution of the agreement, Hamblen owned, among other things, a seat in the Hew York Produce Exchange, which had been pledged to a bank as collateral security for a loan. The certificate, while of little financial value of itself, carried with it a right on the part of Hamblen’s wife, if she survived him, and on the part of his next of kin, if she did not, to a gratuity fund amounting to $9,000 or $10,000. German agreed, by his contract, to pay the dues on the seat - in the Produce Exchange and upon the insurance attached to it.
    After the execution of the contract, Hamblen paid with money given to him by German the loan for which the seat on the Produce Exchange had been pledged as collateral and delivered the certificate thereof, which had previously been assigned in blank, to German. Hamblen, claimed that he said nothing whatever at the time he delivered the certificate to German, while German claimed that Hamblen said at that time, “ This belongs to you; this is yours." German retained possession oí the certificate and paid the dues and assessments accruing thereon until 1902, when Hamblen’s wife died. The death of Hamblen’s wife having terminated German’s prospect of ever receiving any portion of the gratuity fund, he refused to pay any more dues and assessments thereon and claimed the right to sell it.
    In an action brought by Hamblen against German to obtain possession of the certificate, and to require German to pay all the assessments and dues accruing upon it during Hamblen’s life, it appeared that the defendant, in his answer, claimed title to the certificate under the written agreement, but also claimed title generally by virtue of the transfer and delivery by the plaintiff to him of the certificate assigned in blank.
    
      Reid, that if the plaintiff had made an oral agreement to transfer the certificate in question to the defendant, and, in pursuance of such agreement, had voluntarily delivered the certificate to the defendant in accordance with the terms of such oral agreement, the defendant would acquire a good title to the certificate notwithstanding the fact that the oral agreement was invalid and that the defendant could not have legally compelled the performance thereof.
    Appeal by the defendant, Lewis German, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 11th day of June, 1903, upon the decision of the court rendered after a trial at the Kings County Special Term.
    
      Charles H. Fuller, for the appellant.
    
      Emanuel Eschwege, for the respondent.
   Hirschberg, P. J.:

The circumstances out of which this controversy arises are unusual. The plaintiff and his wife entered into a written.agreement with the defendant on the 1st day of December, 1888, by the terms of which the plaintiff and his wife practically agreed to give to the defendant all the property they had and to will to him all which they might have at death, and the defendant agreed in turn to pay the plaintiff’s debts and to support him and his wife until the death of the survivor of them. At the time of the execution of the agreement the plaintiff was the owner of certain real estate in the town of Flatbush, and he also owned personal property consisting of a steam lighter, a seat in the New York Produce Exehange’with the insurance or interest in the guaranty fund attached to it, and two life insurance policies which had been taken for the benefit of his wife. The.real estate was mortgaged for $6,000 and the steam lighter for $4,000. The certificate representing the seat in the Produce Exchange was pledged with the Corn Exchange Bank as collateral security for a loan of $1,000 which the bank had made to the plaintiff, and the plaintiff was otherwise indebted in about the sum of $1,900. The defendant agreed in the written contract referred to to assume and'pay off the mortgages, to discharge the debts, to pay the premiums on the life insurance policies and ¡all assessments, premiums and dues on the seat in the Produce Exchange and insurance attached to it. He also agreed, as I have said, to support and maintain the plaintiff and his wife in the style to which they had been accustomed either at Flatbush or elsewhere in the State of New York as the plaintiff might appoint, paying all expenses of removal and of ' travel in case of a change of residence, to provide for them shelter, clothing and necessities, and to pay them $250 a year while they both lived, and one-half that sum to the survivor as such during life. In addition to the provision for the execution of their wills by the plaintiff and his wife for the sole benefit of the defendant, the agreement provides that the real estate shall.be conveyed to the defendant, the title to the steam lighter transferred to him, and the title to the life insurance policies assigned to him “ so far as may be done.” No mention is made, however,-of the title to the seat in the Produce Exchange, which, while of little financial value in itself, carried with it a tight on the part of the plaintiff’s wife if she survived, him, and oh the part of his next of kin if she did . not, to a fund by-way of guaranty or indemnity amounting to the sum of nine or ten thousand dollars.

The provisions of the agreement appear to have been fairly carried out by the parties, the lawsuit relating only to the title to the certificate representing - the seat in the Produce Exchange. In December, 1888, after the execution of the agreement, the defendant gave the plaintiff a check with which to pay off the loan at the Corn Exchange Bank ; the plaintiff paid the loan, receiving from ' the bank the certificate in question, bearing upon its back an assignment in blank which had been signed by him at the- time the loan was procured ; and he immediately delivered the certifícate to the defendant with the indorsement uncanceled. The plaintiff testified that he said nothing whatever at the time of such delivery, and he gave no statement or explanation of the reason for the delivery. The defendant testified that at the time the certificate was delivered to him the plaintiff said: “ This belongs to you; this is yours.” The defendant has retained possession of the certificate ever since' its delivery and has paid the dues and assessments as agreed until the death of the plaintiff’s wife, which occurred on December 20, 1902. The plaintiff has two sons who will be entitled to the gratuity fund on his death, and the defendant shortly after the death of the plaintiff’s wife notified the plaintiff that as that event terminated his (the defendant’s) chance of ever receiving anything from that source, he desired to dispose of the certificate and declined to pay any more assessments. The judgment detérmines that the title to the certificate is in the plaintiff, and requires the defendant to deliver possession of it to him, and to pay all the assessments, premiums and dues upon it during the plaintiff’s life.

I think the learned trial court erred in excluding evidence which was offered by the defendant for the purpose of showing a verbal understanding or agreement between the parties, entered into at or about the time of the making of the written agreement, providing expressly for the disposition to be made of the certificate in question. The general rulé, of course, is well settled that no oral prior or contemporaneous agreement could be received in evidence to impeach, vary or in any way affect the terms of a written contract, but this rule is subject to the qualification that “ any independent fact or collateral parol agreement, whether contemporaneous with or preliminary to the main contract in writing, may be proved, provided it does not interfere with the terms of the written contract, though it may relate to the same subject-matter.” (21 Am. & Eng. Ency. of Law [2d ed.], 1095, and cases cited.) Whether the excluded evidence would if received have disclosed the existence of such an independent and collateral oral contract need, not perhaps be considered on this appeal inasmuch as the learned counsel for the respondent concedes in his brief that the excluded evidence would have been competent if the defendant had pleaded title to the certificate under a separate oral agreement. His contention is that in the answer the defendant claims title only under the written agreement, and he admits in the brief that “ had the defendant set up that such agreement did not contain all the agreements of the' parties and that there was another contemporaneous' or jirior agreement, and defendant claimed title to the certificate under and by virtue of such other agreement, then such testimony would have been admissible, but, as heretofore stated, the defendant relies upon the agreement set forth in the complaint and claims title under it, whereas there is nothing contained in the agreement whereby defendant could claim title.” Although the defendant in his answer does claim title to the certificate under the written agreement, he also in the 10th paragraph of the answer asserts title generally by virtue of the transfer and delivery by the plaintiff to him of the certificate with the assignment indorsed and signed thereon, and if an agreement to transfer such title was the proper subject of an oral understanding had contemporaneously with the execution of the written contract, I think the pleading is sufficient to justify the reception of the evidence.

I think, however, that the rule of law under consideration has no application to the present action, which is not to enforce the oral ' agreement, but to recover back property which the defendant claims has been actually transferred and delivered for the purpose of conveying title in pursuance of its terms. Assuming that such an agreement while executory would be wholly invalid and unenforcible, yet the parties would be at liberty to carry it out if they saw fit voluntarily to do,so, and if it be true that the plaintiff did deliver the certificate to the defendant for the purpose of transferring title to .it in accordance with the terms of an agreement to . that effect, the agreement would be completely executed by that act, and a good title would pass, notwithstanding the fact that such execution could not have been legally compelled. No question of public policy is involved, and there is no element of immorality or of illegality such as would exist in the case of a contract contravening the prohibition of positive’ law. The defendant has been in undisturbed and undisputed possession of the certificate for fourteen years with an apparent title resulting from both the delivery and the blank assignment, and it would seem in the absence of adverse authority to be competent for him under the general rules of evidenee to establish in defense of his right the motive or intent with whieh he has been so invested by the plaintiff with the apparent ownership by proof that the transfer of title was. the voluntary consummation of even an invalid and unenforcible agreement.

The judgment should be reversed.

All concurred.

■Judgment reversed and new trial granted, costs to abide the final award of costs.  