Cocks v. . Barker

49 N.Y. 107, 1872 N.Y. LEXIS 141

• Court: New York Court of Appeals
• Decided: April 2, 1872
• Status: Published

Opinion

Allek, J.

The bond upon its face discloses the consideration upon and for which it was given. The transfer and delivery by the plaintiff, to his former partner, of the effects of the firm for collection and sale, is in substance declared by the recital to have been the actual, as it was a reasonable and sufficient consideration, for the bond, conditioned for an accounting by that partner, and the payment to the plaintiff of all sums to ]ghich he should be entitled from the avails of such effects.

It was not competent for the defendants to vary or contradict this recital by parol evidence. It was a substantive part of the agreement, and not like the consideration clause of a conveyance or other instrument, which may within certain limits be explained and ,varied by parol. (Renard v. Sampson, 2 Kern., 561; Halliday v. Hart, 30 N. Y., 414.) Neither could the delivery of the bond be shown by parol as in escrow, or conditional. It was delivered to the agent of the plaintiff, which was of the same effect as if delivered to the plaintiff in person. If a deed is delivered to the party or his agent, and not to a stranger, it is absolute, and parol'evidence of conditions qualifying the delivery is inadmissible. ( Worrall v. Munn, 1 Seld., 229; Gilbert v. N. Am. F. Ins. Co., 23 W. R., 43.) The defendants in effect admit by their answer the absolute delivery of the bond, but allege that it was in consideration that the plaintiff should deliver to the obligors or their principal the books of the firm of Barker & "Cocks. As a condition, it could not within the authorities be alleged to defeat the delivery and the validity of the bond.- But the judge at Special Term has found adversely to the allegations of the answer, and the evidence did not establish an agreement to deliver the books. The defendants were allowed to give in evidence all that passed between the parties on that subject, and it was clearly insufficient to prove that the bond was- given upon any other or different consideration than that expressed in the recital. Questions asking for the conclusions of the witness, rather than for facts, were excluded, and properly so. The witness had stated all that had taken place, and the negotiation of the parties prior to the execution of the bond, and from the facts as proved, it was the province of the court to determine, so. far as the question was open for consideration, whether the delivery of the hooks was the sole consideration of the bond. The court, excluded evidence of what the plaintiS’s agent said at the time of the delivery of the bond, hut afterward it was proved without objection. The evidence was not competent. The only effect that could be claimed from it was either to vary the condition of the obligation, or prove that the delivery was conditional, and neither was admissible.

It was not claimed that the non-delivery of the books in any way affected the ability of the principal to perform the condition of the bond, or that the defendants or their principal lost anything, or were in any manner embarrassed by reason of such non-delivery. There was no claim for equitable relief on the ground of fraud or mistake, and no foundation for such relief in the evidence. There was no equity in the defence attempted to be set up, if it had been proved, entitling the defendants to relief of any kind against their legal liability. .

The judgment must be affirmed.

Allen, J., reads for affirmance. All agree.

Judgment affirmed.