
    Jacob Liebel et al., Respondents, v. Benjamin Light, Appellant.
    (Supreme Court, Appellate Term,
    February, 1900.)
    1. Contract — Failure to pay installment on delivery of goods.
    Where an agreement constitutes a deposit security for monthly payments in two installments for tailors’ monthly clippings, a failure of the depositors to pay an installment upon a delivery of the clippings made to them, is a breach of the contract which entitles the tailors to refuse to make further deliveries and precludes the depositors from recovering their deposit from the tailors.
    2. Same — Not to be varied by parol.
    A written agreement, which has been treated by the parties as constituting the whole contract, cannot be varied by parol.'
    
      Appeal from a judgment rendered in favor of the plaintiffs in the Municipal Court, seventh district, borough of Manhattan.
    J. L. Weinberg, for appellant.
    Meyer & Josephson, for.respondents.
   MacLean, J.

During three years, as was testified to by the one of the plaintiffs who appeared as a witness on this trial, which was the second of the cause, the plaintiffs had been buying clippings from the defendant at $28 a week. In the latter part of 1897, the parties entered into a new agreement for 1898, as was evidenced by a paper running:

“ New York, December 30ill, 1897.
“ Received from Liebel Bros., the sum of one hundred and twenty dollars ($120.00) as deposit and security for the prompt payment to us of one hundred and twenty dollars ($120.00) monthly for clippings to be delivered by us to said Liebel Bros, weekly, commencing, January 3rd, 1898, and ending December 31st, 1898. Above sum to be paid to us in two installments of sixty dollars ($60.00) each, semi-monthly, the 1st and 15th of every month.
Liebel Bros.
B. Light & Co.”

The plaintiffs entered upon the performance of the above agreement, and twice in each of the months of January, February and March took the clippings produced, by the defendant in the manufacture of clothing, and at each time of taking the clippings paid the semi-monthly installment of sixty dollars. On the first or the fourth of April, the plaintiffs called for and gathered up the clippings, and placed the bags in which they were packed on the elevator to take them away. An employee of the defendant then asked for the sixty dollars, and one of the plaintiffs who was alone on the elevator stated that he would get the money from his brother who was downstairs, and bring it up. Neither of the plaintiffs returned with the money, and neither ever paid the sixty dollars. On April fifteenth, the plaintiffs again called and attempted, somewhat surreptitiously, it seems, to remove the clippings without paying the installment for that lot or for the preceding lot. The plaintiffs were again stopped on the elevator, and this time refused permission to take the clippings away without the payments. After some delay, this action was brought for “money had and received”. Like this, the former trial resulted in a verdict in favor of the plaintiffs, but the former judgment was set aside upon appeal without discussion of the “ many other grounds urged against the judgment ”, because “ under the charge of the court the jury had no other recourse than to find that defendant had broken the contract by his refusal to allow plaintiffs to take the clippings without paying for them, and that, therefore, plaintiffs were entitled to the return of their deposit ”, the justice having said on that trial that “ there is nothing in this contract which gave the defendant that right, to-wit, to keep hack the second bill of goods and refuse to deliver any more because the first had not been paid for, I charge you there is nothing in the contract which allowed the defendant to break it for that reason. * * * I am of opinion that the defendant had no right under the terms of this contract to refuse to deliver goods because the former lots were not paid for”. This second judgment also rests upon erroneous grounds. The agreement between the parties was broken by the plaintiffs themselves,- and the defendant relieved from liability, when they failed and refused to pay according to its terms. As the paper copied above constituted the agreement between the parties herein, and it was so regarded and acted upon by them, the justice erred in receiving, as he did, despite due objection and exception of the defendant, testimony as to alleged conversations before the making of the agreement, so as to find out, as he said, “ whether or not all the clippings should be delivered, and if there was anything said about the amount that would likely be ”, and for which ruling there was the less excuse, as the defendant had already admitted that the term “ clippings ” in the written agreement was understood to mean all clippings produced in defendant’s business for the manufacture of clothing.

The judgment, therefore, should be reversed.

Freedman, P. J., and MacLean, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  