
    (86 Hun, 189.)
    HURST v. CRESSON & CLEARFIELD COAL & COKE CO.
    (Supreme Court, General Term, First Department.
    April 11, 1895.)
    1. Contracts—Action on—Past Consideration.
    A writing which recites that, in consideration of special services theretofore rendered to defendant by plaintiff’s assignor in securing a contract for the sale of coal, defendant agrees to pay a commission of 15 cents per ton on all coal sold and delivered under the contract of sale, implies that the services were performed at the instance of defendant, and therefore, in an action to recover the commission, the complaint need not allege such request, where the contract is set out in full.
    2. Counterclaim—Action on Contract.
    In an action to recover commissions on a sale of coal made by plaintiff’s assignor for defendant, an answer which alleges that before defendant agreed to pay the commissions sued for plaintiff’s assignor agreed to obtain for defendant special privileges for the shipment of all coal called for under the contract of sale, that such privileges were obtained in respect to only a part of the coal sold, and that the failure to obtain the same privileges as to the balance of the coal resulted in damage to defendant, is insufficient, in that it appears that the alleged promise to obtain the special privileges was made before the agreement to pay commissions, and therefore became merged therein.
    8. Parol Evidence—When not Admissible.
    A contract by which defendant agrees to pay plaintiff’s assignor 15 cents per ton for all coal sold under a contract obtained by him contains nothing which suggests that it does not embody the entire agreement, and therefore parol evidence is not admissible to show that plaintiff agreed to render further services in connection with the procuring of the contract of sale, which he had failed to render.
    Appeal from circuit court, New York county.
    Action by William H. Hurst against the Cresson & Clearfield Coal & Coke Company to recover a balance due on a contract between one John E. Ingersoll, plaintiff’s assignor, and defendant. From a judgment for' $5,709.25, entered on a verdict in favor of plaintiff directed by the court, and from an order denying a motion for a new trial, defendant appeals.
    Affirmed.
    Argued before VAN BRUNT, P. J., and O’BRIEN and PARKER, JJ.
    Charles F. Estwick, for appellant.
    Benjamin Yates, for respondent.
   PARKER, J.

The object of this action was to recover the sum of $6,031.71, a balance claimed to be due to the plaintiff under a contract of which the following is a copy:

“Boston, Mass., June 8th, 1891.
“In consideration for special services rendered in securing contract with the New York and New England R. R. for 200,000 tons of coal, more or less, we hereby agree to pay John E. Ingersoll, of New York, as a commission for said special services, 15c. (fifteen cents) per ton on all coal sold and delivered to the said New York and New England R. R. under contract made this day with said New York and New England R. R., from June 10, 1891, to June 10, 1892, said commission of 15c. (fifteen cents) per ton to be paid by us to the said Ingersoll as fast as said coal is delivered to and paid for by the said New York and New England R. R.
“Cresson & Clearfield Coal & Coke Co.,
“Witness: Sam’l C. Elliott. By J. O. Wittenberg.”

The complaint set up a copy of the contract; the delivery of 106,875 tons of coal by the defendant to the New York & New England Railroad Company; payment therefor by it to the defendant; payment by the defendant to Ingersoll, plaintiff’s assignor, of the sum of $10,000, on account of the amount due him from the defendant for commissions under the contract; and the assignment of Ingersoll’s interest under the contract to this plaintiff prior to the commencement of this action.

When the cause came on for trial, the defendant moved to dismiss the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. This motion was founded upon the authority of Lampleigh v. Brathwait, 1 Smith, Lead. Cas. 167; Parker v. Crane, 6 Wend. 647; Comstock v. Smith, 7 Johns. 87; Bartholomew v. Jackson, 20 Johns. 28; Herendeen v. De Witt, 49 Hun, 56, 1 N. Y. Supp. 467. These cases assert the general rule to be that where a promise to pay, made subsequent to the completion of the services, is alleged in the complaint, it must also be alleged that such, services were rendered at defendant’s request. In Com-stock’s Case the court said:

“It does not seem requisite, in every case of a past consideration, to lay an express request in the declaration, though the cases in which it is not required are rather exceptions to the general rule. They are such in which a beneficial consideration and a request are necessarily implied from the moral obligation under which a party was placed.”

And in Herendeen’s Case the court said:

“It was formerly a rule of pleading, and such it probably is now, that when the consideration was executed, and the validity of the promise depended upon the previous request, such request should be alleged.”

Assuming, as did the court in the last case, that the general rule asserted by the cases we have cited now obtains, still this case is not within it; because the contract not only expresses the consideration, but it imports that the services which constituted it were performed at the instance of the defendant. It asserts the making of the contract between defendant and the New York & New England Railroad Company, on the day when the agreement in suit was executed, by which the former was to furnish the latter coal for a period of one year; and that in consideration of the special services of Ingersoll in securing for the defendant such contract it would pay him a commission of 15 cents a ton, as fast as the coal should be delivered and paid for. In other words, defendant by its contract said, in effect: Ingersoll has, by special services in our behalf, induced the New York & New England Railroad Company to enter into a contract with us this day, which is of such value that we agree to pay him a fixed commission in consideration for such services. It is certainly a reasonable inference, from the language employed, that the special services were rendered at the request of the defendant. And when the contract asserts a previous request, or such a request is fairly inferable from the instrument, it is unnecessary that the request should be specially pleaded, if the contract be set up in full. Our conclusion, therefore, is that the court did not err in denying the motion to dismiss the complaint.

The plaintiff, to establish his cause of action, put in evidence the ' contract between the defendant and the New York & New England Railroad Company, consisting of a letter of -the former under date of May 20, 1891, offering coal and terms, and an acceptance by the latter by letter signed and delivered to defendant in Boston, on June 8th, on which date, and at the same place, the contract between defendant and Ingersoll was executed and delivered by the defendant. It was admitted that under the contract the defendant delivered to and was paid by the railroad company for 97,500 tons of coal; and it was conceded that at the contract rate the sum remaining due under the Ingersoll contract was $5,278.48. This evidence, together with the admissions contained in the answer, made out a cause of action.

The answer of the defendant alleged for a counterclaim to plaintiff’s cause of action and by way of a separate defense, “that on or about the 8th day of June, 1891, and previous to the entering into the contract hereinbefore referred to, the said John E. Ingersoll represented, promised, and agreed to and with the defendant that * * * he would obtain from the New York & New England Railroad Company special concessions and privileges for the defendant with reference to the shipment of all coal called for under the contract to be entered into with the New York & New England Railroad Company.” It further alleges that such concessions and privileges were granted by the railroad company to the defendant in respect to the 60,000 tons of coal, and no more; and that the failure of Ingersoll to*, carry out the contract, occasioned by the railroad company’s refusal to grant the concession and privileges as Ingersoli represented it would do, caused damage to the defendant in the sum of $15,000. ‘ The evidence offered by the defendant in support of its alleged counterclaim was excluded by the court upon the grounds (1) that it appears by the answer that the alleged promise of Ingersoll was made prior to the contract sued upon, and therefore became merged in. the written contract executed by the defendant; (2) that, were his promise to be treated as collateral to the main contract, such promise, whatever it was, was fulfilled when he secured a contract which was satisfactory to and accepted by the defendant. In thus ruling the court did not commit error.

The authorities cited by the counsel for the appellant in support of the proposition that the rule prohibiting the reception of parol evidence to vary or modify a written agreement does not apply where the original contract was verbal and entire, and a part only was reduced to writing, nor to a collateral undertaking, are not applicable to this situation. There is nothing in this contract which suggests that it does not embody the entire agreement of the parties. On the contrary, it asserts that Ingersoll had performed the services which constituted the consideration for the contract. According to its terms, Ingersoll was to be paid a commission on the coal sold and delivered to the railroad company, because of the services which he had already rendered in procuring the railroad company to enter into a contract with the defendant, which it had accepted. The concessions and privileges which the defendant asserts in its answer Ingersoll was to procure it alleges were to be procured by him from the railroad company, and in the ordinary course of business would have been embodied in the contract between the railroad company and the defendant; and its acceptance of the contract, which Ingersoll procured the railroad company to make with it, evidenced its satisfaction with the work which he had performed in that direction. Its satisfaction was further confirmed and put at rest by the agreement thereafter executed by the defendant, by which, in terms, it agreed to pay the commission of 15 cents a ton for the services rendered by him in procuring the execution of such contract. In the light of these facts, and by reason of the language of this contract, it must be held that the rule which requires the rejection of parol evidence when offered to cut down or take away obligations entered into between parties, and by them put in writing, was applicable.

The appellant also attempts to invoke in its support another exception to the general rule relating to the admission of parol evidence to change or modify a written agreement, to wit, that parol evidence may be admitted to prove that the paper, which is in form a complete contract, was delivered to take effect only on performance of a condition. But it seems to us a sufficient answer to this contention to say that there is nothing in either defendant’s answer, or in the evidence offered by it, asserting or tending to establish that this contract was delivered upon condition that it should take effect only upon performance by the railroad company of conditions not specified in its contract with the defendant, or upon performance by Ingersoll of any future services, or to await a full realization by the defendant of the benefits expected to accrue as a result of services supposed to be fully performed. The contract, on the other hand, distinctly provided for payment to fingersoli as fast as said coal is delivered to and paid for by the said New York & New England Railroad.” The judgment should be affirmed, with costs. All concur.  