Delamater v. Bush

63 Barb. 168, 45 How. Pr. 382, 1872 N.Y. App. Div. LEXIS 95

Opinion

By the Court, P. Potter, J.

1. Evidence was admitted, against objection and exception, that the sum to be paid was $250, and not $450, as mentioned in the agreement. I think this was error.

While in deeds, and other instruments, you may, for certain purposes, prove the consideration to be different from that expressed, it is not admissible to contradict an agreement or covenant , to pay a certain sum. The case was tried upon this theory, and by it a verdict given for the defendant.

So, too, that previous oral negotiations are merged in the writing, is a reason why such proof should not be admitted ; in the absence of fraud or mistake.

2. The oral evidence disclosed that the parties to the action, between themselves, fixed $450 as the sum to be paid, untruly, for the purpose of obtaining from another person a portion of that sum, when, as between themselves, $250 was all that was to be paid by the defendant. If this was true, it was a fraud, which a party is not allowed to set up in defense.

[Third Department, General Term, at Schenectady, June 4, 1872.

The judgment should be set aside, and a new trial ordered; costs to abide the event.

Miller, P. Potter and Parker, Justices.]