
    Jacob S. Isaacs, App’lt, v. Lewis Jacobs, Resp’t.
    
      (City Court of New York, General Term,
    
    
      Filed October 3, 1889.)
    
    1. Evidence — Varying written instruments.
    In an action on a note given in exchange for an assignment of a claim, but absolute on its face, evidence that it was orally agreed that the note should not be operative unless the money on the asssignment was realized, is inconsistent with the instrument and inadmissible.
    Appeal from judgment entered on verdict directed in favor of defendant.
    
      A. L. Sanger, for app’lt; H. Grasse, for resp’t.
   Per Curiam.

The defendant gave the plaintiff an assignment of a claim against S. H. Smith & Co., for $745.70. It was absolute on its face. The plaintiff in exchange for it gave his note to the defendant for $745.70, payable unconditionally six months after date. Each instrument is a complete contract in itself, the one being the consideration of the other. The plaintiff sued to recover $419.80, and the defendant admitted the plaintiff’s cause of action and recovered judgment for the difference between the plaintiff's note of $745.70 and his claim of $419.80, aggregating with interest $408.68. The plaintiff offered to prove at the trial that at the time the note and assignment were exchanged it was orally agreed that the note should not become operative unless the money on the assignment was realized. The evidence was ruled out upon the ground that it tended to alter, vary and contradict the terms and legal effect of the note and assignment.

We think the proof offered did not tend to prove an independent condition consistent with the note and assignment, and that the evidence was properly excluded. Bull’s Head Bank v. Koehler, 1 City Court R., 264; Cocks v. Barker, 49 N. Y., 107; Smith v. Killam, 16 N. Y. State Rep., 568. While the rule prohibiting oral evidence varying the terms of a written contract does not apply to separate, independent collateral undertakings, or where the original contract was verbal, and a part only reduced to writing, yet where it appears by an inspection of a written contract, read, it may be, in the light of surrounding circumstances, in order to its proper understanding and interpretation, that it was intended to express the whole contract, it will be conclusively presumed so to do, and oral evidence may not be resorted to to prove that there was a stipulation or an undertaking necessarily •connected with, and one of the elements of the contract, but not contained therein. Eighmie v. Taylor, 98 N. Y., 288. For if we may go outside of the instrument to prove that there was a stipulation not contained in it, and so that only part of the contract, was put in writing, and then, because of that fact, enforce the oral stipulation, there will be little of value left in the rule itself. See opinion of Finch, J., in the case cited. The assignment made was absolute on its face, and the note contained no conditions or qualifications, and the evidence offered by the plaintiff and excluded by the trial judge sought to engraft upon them provisions at variance with their terms and legal effect. The exceptional rule admitting evidence of independent collateral undertakings, does not go to the extent of permitting proof of oral undertakings inconsistent with the writings, but only those consistent with and not repugnant thereto. The exception must be kept within bounds, or the rule itself may be impaired or even destroyed. For the reasons stated, the judgment appealed from must be affirmed, with costs.

McAdam, Ch. J., Nehrbas and McGown, JJ., concur.  