Thomas J. Reynolds, Respondent, v. Thomas Robinson et al., Appellants

Thomas J. Reynolds, Respondent, v. Thomas Robinson et al., Appellants. Parol evidence is admissible to show that a writing, which is, in form, a complete contract, of which there has been a manual tradition, was not to become a binding contract until the performance of some condition precedent resting in paroi. It Seems, however, to avoid mistake or imposition, this rule should be cautiously applied, and confined strictly to cases clearly within its reason. (Argued June 20, 1888: decided October 2, 1888.) Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made October 24, 1885, which reversed a judgment in favor ■of defendant, entered upon the report of a refefee, and ordered . a new trial. This action was brought to recover damages for a breach of an alleged contract for the purchase, by plaintiff, and sale by defendants, of a quantity of lumber. The following is the mem. of opinion : “ The finding of the referee, which is supported by evidence, to the effect that the contract for the purchase and sale of the lumber on credit, contained in the correspondence between the parties, proceeded upon a contemporaneous oral under- . standing that the obligation of the defendants to sell and ■deliver was contingent upon their obtaining satisfactory reports from the commercial agencies as to the pecuniary "responsibility of the plaintiff, brings the case within an • exception to the general rule that a written contract cannot be varied by paroi evidence, or rather it brings the case within the rule, now quite well established, that paroi evidence is admissible to show that a written paper which, in form, is a complete contract, of which there has been a manual tradition, was, nevertheless, not to become a binding contract' until the performance of some condition precedent resting in paroi. (Rym v. Campbell, 6 El. & Bl. 370; Wallis v. Littell, 11 C. B. 368; Wilson v. Powers, 131 Mass. 539; Seymour v. Cowing, 4 Abb. Ct. App. Dec. 200; Benton v. Martin, 52 N. Y. 570; Juilliard v. Chaffee, 92 id. 535, and cases cited; Taylor on Ev. § 1038; Stephen’s Dig. Ev. § 927.) Upon this ground, we think the evidence of the paroi understanding, and also that the reports of the agencies were unsatisfactory, was properly admitted by the referee and sustained his report, and that the General Term erred in reversing his judgment. It is perhaps needless to say that such a defense is subject to suspicion, and that the rule stated should be cautiously applied to avoid mistake or imposition, and confined strictly to cases clearly within its reason. “ The order of the General Term should be reversed, and the judgment on the report of the referee affirmed.” Tracey C. Becker for appellant. E. A. Hash for respondent. [MAJORITY — Andrews, J.,] Andrews, J., reads for reversal of order of General Term and for affirmance of judgment entered on report of referee. All concur. Order reversed and judgment affirmed.