Edward P. Mullen, Respondent, v. John Washburn, Appellant

Edward P. Mullen, Respondent, v. John Washburn, Appellant. Third Department, November 10, 1915. Evidence — parol evidence to vary written contract — deed exempting grantor from liability for trespass — breach of alleged agreement. Where a conveyance of land expressly provides that the grantor shall not be liable for any trespass or damage done or committed on any lands adjoining those conveyed, it is error to allow the grantee, when suing his grantor to recover damages and costs which he was compelled to pay in an action for trespass by him in cutting timber on adjoining lands, to prove a parol agreement whereunder the grantor had the boundary surveyed and pointed out to the grantee the boundary line up to which he cut timber and which was, in fact, on a neighbor’s land. This, because such parol testimony seeks to limit or contradict the express provisions of a written instrument. Appeal by the defendant, John Washburn, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 3d day of February, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of January, 1915, denying defendant’s motion for a new trial made upon the minutes. T. D. Trumbull, Jr., for the appellant. Rogers & Sawyer [E. C. Rogers of counsel], for the respondent. [MAJORITY — Smith, P. J.:] Smith, P. J.: Plaintiff is the grantee of the defendant of a certain lot of lands, bounded on the east by lands of one Nicholas Palmer and Elizabeth J. Palmer. In cutting timber he trespassed upon this adjoining property. Judgment was obtained against him, and he now seeks to recover against the defendant both the damages and costs which he was required to pay in that action and his expenses of defending the same. His claim is based upon the provisions of the deed which he holds. Those provisions are as follows: “ The said party of the first part hereby covenants and agrees to warrant and defend the title to the wood, timber and trees hereby sold, transferred and conveyed against any person or persons whomsoever, and to defend any action for trespass or damages by reason of the cutting such wood, timber or trees by party of the second part and to save said party of the second part harmless from any action for trepass brought against him by any person or persons for cutting and removing such timber, wood and trees. But it is expressly understood that party of the first part shall not be liable to party of the second part for any damage by reason of any order or injunction restraining the cutting or removing of such wood, timber and trees pending any action that may be brought for trespass, damages or in any manner relating to the title of said premises. “ This sale and conveyance is made upon the further condition that the said party of the first part shall not be liable for any trespass or damage done or committed on any lands or property adjoining the above described premises.” The evidence shows prior conversation at the time the deed was signed, in which the defendant agreed to have the land surveyed and point out to the plaintiff where his boundary was. It is shown that in pursuance of said agreement he did in fact point out a certain line, and the plaintiff cut to that line, and in cutting to that line was made liable for trespass. This evidence was objected to on behalf of the defendant as altering a written instrument. The rules of law relative to permitting evidence to be introduced to alter or vary a written instrument are not here disputed. The only question arises as to the application of those rules. It is undoubtedly true that if an agreement is oral and part only be reduced to writing the full contract may be shown by oral evidence. But there is a limitation to this provision, and that is that the part that is introduced as part of the oral contract shall not be contradictory of or inconsistent with the written contract. (17 Cyc. 643; Jamestown Business College Assn. v. Allen, 172 N. Y. 291.) If then this oral testimony shows any agreement which shall limit the written contract, or shall contradict it, then it would seem plain that this evidence is not admissible. The last provision of this contract is to the effect that the sale is made on condition that the first party “ shall not be liable for any trespass or damage done or committed on any lands or property adjoining the above-described premises.” The modification which the plaintiff would seek to establish to this contract would be an exception to that general provision, to wit, that the lines shall be laid out by the defendant, and for a trespass to that line the defendant would be liable for damages. This, it would seem to me, clearly limits the written agreement, and whatever may be the misfortune in the present case we are required to hold to the rule that the writing is conclusively presumed to contain all of the covenants of the parties. With these views it follows that this judgment and order must be reversed, with costs, and the complaint dismissed, with costs. All concurred. Judgment and order reversed, with costs, and complaint dismissed, with costs.