B. H. Krueger, Inc. v. Hearn Department Stores, Inc.

265 A.D. 791, 40 N.Y.S.2d 923, 1943 N.Y. App. Div. LEXIS 6416

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 22, 1943
• Status: Published

Opinions

Per Curiam.

It was error to receive parol evidence as to an oral agreement by defendant to take 5,000 boxes within one year, on the theory that it was fairly arguable that the writing on which the parties acted was not an entire contract. The writing, by its terms, limited defendant’s obligation to the taking of 5,000 boxes only in the event the defendant decided to change the form of the package. The parol proof received contradicted this written limitation, and could not be said merely to supplement it. “ Under our decisions before such an oral agreement as the present is received to vary the written contract at least three conditions must exist, (1) the agreement must in form be a collateral one; (2) it must not contradict express or implied provisions of the written contract; (3) it must be one that parties would not ordinarily be expected to embody in the writing; or put in another way, an inspection of the written contract, read in the light of surrounding circumstances must not indicate that the writing appears ‘ to contain the engagements of the parties, and to define the object and measure the extent of such engagement.’ Or again, it must not be so clearly connected with the principal transaction as to be part and parcel of it.” (Mitchill v. Lath, 247 N. Y. 377, 380, 381.)

The proof here did not satisfy the second of the foregoing requirements, even though it might possibly be said to have satisfied the remaining two.

In the light of our determination that the parol evidence rule was violated, it becomes unnecessary to discuss the remaining questions raised.

The determination of the Appellate Term, and the judgment of the Municipal Court should be reversed, and the complaint dismissed on the merits, with costs to the defendant in all courts.