Robert M. Love and Amanda Love, Respondents, v. Ephraim Hamel, Appellant

Robert M. Love and Amanda Love, Respondents, v. Ephraim Hamel, Appellant. Contract of sale of a lunch wagon—parol evidence, that an agreement by the vendor to abandon the business was, to the knowledge of the parties at the time it toassigned, omitted, is incompetent. The vendees in a written contract for the sale of a lunch wagon contended that, the sale was made upon condition that the vendor would not maintain a lunch, wagon in the same city or sell one to anybody else to be operated there, but, that they at first forgot to mention that provision to the attorney who drew the written contract, and that when the attorney's attention was called to the-omission he stated-that he would draw a new contract pr interline the omitted, provision in the contract already drawn, but the vendees stated that such a-course was not necessary, and the contract, which was complete upon its face, was then executed without change. Held, that the oral agreement in regard to maintaining another lunch wagon was-not a collateral and independent agreement, and that parol evidence of such, agreement was inadmissible as it tended to vary the written contract. Appeal by the defendant, Ephraim Hamel, from a judgment of the County Court of Tompkins county in favor of the plaintiffs,, entered in the office of the clerk of the county of Tompkins on the-5th day of October, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of October^. 1900, denying the defendant’s motion for a new trial made upon a case containing exceptions. The action was commenced in a Justice’s Court of the county of Tompkins, where a judgment was rendered in favor of. the plain- . tiffs for $200 damages and costs. The defendant then appealed • to the County Court and demanded a new trial. On the 22d day of May, 1896, plaintiffs owned and maintained a lunch wagon in the city of Ithaca; the defendant also owned a lunch wagon, which was maintained in the city of Ithaca by the plaintiffs as his employees. On that day the defendant offered to sell his lunch wagon to the plaintiffs, stating that his health was getting poor; that he wanted to get out of the business, and that he would not put a wagon in Ithaca or sell one to anybody to run there. The plaintiffs accepted the offer and suggested that a contract be drawn, and the three went to the office of a lawyer where the plaintiffs told the lawyer that they had bought the lunch wagon of the defendant and wanted to get a contract drawn, and the terms of the contract were stated. The plaintiffs claim that they forgot to tell the lawyer that part of the agreement in which the defendant agreed not to put another lunch wagon in Ithaca. After the contract had been drawn it was read over, and the lawyer asked if it was all right, whereupon the plaintiffs said that it was all right, except the clause in regard to defendant’s agreement not to put a lunch wagon in Ithaca, or selling one to anybody to be maintained there. The lawyer stated that he would draw a new contract or interline such a provision in the contract he had drawn. The defendant said that it was not necessary, that he was in a hurry, that the plaintiffs had always done as they had agreed by him, and that he certainly would by them. The lawyer said that it would be better to have the entire agreement in writing, but it was not redrawn or changed. The contract was then executed in duplicate and acknowledged before a notary. The material part of the contract is as follows: “ Party of the first part hereby sells, transfers and delivers to the parties of the second part, one Cornell Cafe, situated on Eddy street in said city, for several weeks last past run'by parties of the second part, together with all of the fixtures and appurtenances thereto, belonging and owned by said party of the first part, for and in consideration of the sum of •One Thousand dollars ($1,000), which consideration of One Thousand dollars is to he paid to the party of the first part by the parties of the second part as follows: “ Fifty dollars ($50) to be paid even date herewith, the receipt •whereof is hereby confessed and acknowledged; fifty dollars ($50) within one week from this date; the balance of said consideration, or the sum of Hine Hundred dollars ($900) to be paid in installments of twenty-five dollars ($25) each, weekly thereafter, the first of said installments to be due and payable on June 5, 1896, with annual interest upon all sums unpaid at the rate of five per cent.” After plaintiffs had continued the business with the two wagons a little over a year, a third wagon was brought to Ithaca and a lunch business was maintained therein. It is claimed by the plaintiffs that this wagon was owned and maintained by the defendant, and this action was brought against him by the plaintiffs for damages by reason of the alleged breach of the agreement hot to put another lunch wagon in Ithaca. The action- was originally brought and tried in a Justice’s Court, and a verdict of $200 found in favor of plaintiffs. An appeal was taken to the County Court of Tompkins ■county for a new trial, and on such new trial a verdict of $200 was again found for the plaintiffs. E. E. Mellon, for the appellant. Simeon Smith, for the respondents. [MAJORITY — Chase, J.:] Chase, J.: The trial court allowed the plaintiffs to give evidence of the •alleged oral agreement preceding and accompanying the execution of the written agreement, subject to the defendant’s objection that "the same was inadmissible to vary, modify or extend the written instrument. The writing executed-by the parties was a formal one, and it appears on its face to be a complete contract, expressing the full agreement by and between the parties. The plaintiffs ■ contend that the oral agreement in regard to maintaining another lunch wagon is a collateral and independent agreement, and that parol evidence was properly received in regard to the same. In the case of Costello v. Eddy (34 N. Y. St. Repr. 565) the court, in discussing a case involving substantially the same facts presented in this case, uses the following language: “Adopting the plaintiff’s theory of the contract, it was to sell the business, the stock and the good will of the defendant, and as to him. the exclusive right of enjoyment and monopoly of the business of carrying on a bakery in Saratoga, in consideration of all of which the plaintiff agreed to pay $2,000. Now suppose that in drawing the contract, all other articles, rights and privileges intended to be transferred by the parties had been specified in the contract, except the horses and harness, could the plaintiff in an action at law for damages for a failure .to deliver the horses and harness prove, notwithstanding the writing, that they were embraced in the sale and paid for by the $2,000 ? We think not.” The decision in the Costello v. Eddy case was affirmed by the Court of Appeals, the court adopting the opinion from which the above quotation is taken as the opinion of that court. (128 N. Y. 650.) The statements made by the parties to this action, and advice of -counsel given when the writing was being prepared, shows that the parol agreement was considered by all as one entire agreement, all ■of which to be binding upon the parties should be incorporated into the written agreement. The parol evidence preceding and accompanying the execution of the written agreement was improperly received. Judgment reversed. New trial granted, with costs to the appellant to abide the event. All concurred. Judgment and order reversed and new trial granted, with costs "to appellant to abide event.