Electrical Equipment & Inspection Co. v. Archibald

92 N.Y.S. 1121

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 28, 1905
• Status: Published

Opinions

McCALL, J.

The judgment should be affirmed. There was a clear contract entered into as between these parties, as proved by the writing signed by the defendant and in possession of plaintiff, and by him offered at the trial; and I do not see how it can be claimed that there was not a meeting of minds, when the instrument itself proclaims what the defendant desires, and the proof is abundant to show that plaintiff performed in every particular as to that which defendant requested. In fact, there is little or no dispute on that score on the part of defendant; but, while practically admitting this all to be true, he seeks to relieve himself of his obligations, not through any claim of nonperformance of the written contract, or that in so far as the express terms of the written contract are concerned they are not agreed, but because he asserts he made this contract or signed this writing upon the assurance by plaintiff’s agent that, as a result of this inspection to be made, his monthly bills would show a deduction of $25. Defendant was allowed to offer proof as to this, although such condition was not expressed in the instrument; and I think the learned court was right in accepting it, and certainly no harm came to the defendant through its admission. But here was a company in no wise connected with the one supplying the light, whose only promise was to inspect the plant installed, and, discerning defects, to report same in a certificate they were to furnish. Their denial of this alleged orally made condition asserted by the defendant, and their proof that what was said was that whether any saving would be made would depend upon their finding defects in the giant, was the probable truth; and the learned justice below saw it that way, and, as against the unlikely assertion of defendant, rightfully determined the issues. As to the pleading setting forth conditions precedent, it is too plain that what that had reference to was that the inspection called for in the contract should be made, and certificates therein provided for should issue, before payment could be demanded; and, although not plainly set forth, it thus clearly alleges that it made the inspection, and issued its certificate, and the proof abundantly sustains them. If any dubiety exists in such cases as is now before us, so as to cause courts annoyance and difficulty in determining what parties really contracted for, and where all the trouble is occasioned by an attempt to really alter and change the form of an expressed contract by proof of oral conditions which could just as easily have been expressed in the contract, if they were ever agreed to or talked about, it strikes me that after a fair trial of the issues, in which both sides have had a fair and full opportunity to amply present their different sides, reviewing courts should be slow to set the judgment aside on technical reading of pleadings. Judgment affirmed, with costs.