Hinnemann v. . Rosenback

39 N.Y. 98, 6 Trans. App. 257

• Court: New York Court of Appeals
• Decided: March 5, 1868
• Status: Published

Opinions

Mason, J.

I am satisfied, after a careful examination of 'this case, that the referee committed no error, in admitting the parol evidence to aid in the interpretation of this contract, which can prejudice the Plaintiff, and that he gave the correct construction to this agreement.

The language of the contract itself favors the construction put upon it by the referee. By the terms of the contract, the Defendant was to pay Hinneman, for the construction of his dwelling-house, the sum of one thousand seven hundred dollars, lawful money of the United States, and to convey to him the house and lot on the corner of Mulberry and Jackson Streets, and to deed to said Hinneman, upon the signing, of the agreement, the house on the lot on Jefferson Street, and to pay him “five hmi-dred dollars vn a/n order on Messrs. Woodruff c& Taylor, of Osioego.” It is not a reasonable construction of the contract itself to hold that these parties meant a cash draft on Woodruff & Taylor. He was to pay $1,100 in cash, and $500 in an order on Woodruff & Taylor, of Oswego.

The legal deffnition of an order does not ordinarily mean a cash draft. Bouvier says that “ an informal bill of exchange, or a paper which requires one person to pay or deliver to another goods on account of the maker to a third party, is called an order ” (Bouvier’s Law Dictionary, title “ order,” 2d vol., p. 257); while a draft or bill of exchange is defined to be “ an open letter of request from, and order by, one person on another to pay a sum of money therein mentioned to a third person, on demand, or at a future time therein specified ” (1 Bouv. Law Dictionary, 189). A draft, at the present day, is “ the common term fora bill of exchange ” (1 Burrill’s Law Dictionary, 520, title “ draft ”); and a draft and bill of exchange are used indiscriminately. Edwards says : “ The bill of exchange, properly termed a draft, is written in the form of an open letter, directing the person to whom it is addressed to pay the sum of money therein specified to a third person named in the instrument, on account of the writer or person by whom it is drawn ” (Edwards on Bills and Promissory Notes, 41; Chitty on Bills, 130, 154).

It must be payable in money (Thompson v. Sloan, 23 W. R. 73; Cook v. Satterlee, 6 Cow. R. 108; 5th ed., 186). Not so with an order; the moi’e common definition is that given by Bouvier, as an order to pay goods on account of the maker to a third person. It was only necessary in this case to prove that "Woodruff & Taylor were -manufacturers of these articles, necessarily used in house-building, to raise a reasonable presumption that it was the intention of these parties that this order should be for such articles, especially as it was proved that these parties knew that such was the business of Woodruff & Taylor.

We cannot shut our eyes to the fact that the Plaintiff was, in this agreement, entering into a contract to build a dwelling-house for the Defendant; where these very materials would be required in its construction ; and when we add to this the fact that the Defendant, in the contract, agreed to pay $1,700 in cash, and an order on Woodruff & Taylor for $500, the presumption is very strong that this order did not mean a cash draft on them.

To my mind it is clear. Be this as it may, if the matter was left in doubt, it was certainly competent to remove it by the parol evidence in the case. The rule is a common one, to receive evidence external to the contract in aid of the interpretation of its language. Such evidence, however, cannot be received to contradict or vary the terms of a written contract; and where the instrument has a settled legal meaning, its construction is not open to parol evidence (2 Parsons on Contracts, 63). But where, as in this case, the order may mean a money order, or an order payable in those kind of building materials, there can be no doubt that the interpretation of the language of the contract may be aided by extrinsic evidence showing the intention of the parties in tRe use of the language in the particular instrument (2 Parsons on Contracts, 76).

I am quite inclined to the opinion that it was not competent for the Defendant to prove that he held a note or due-hill, made by "Woodruff & Co., payable in these materials.

Its admission, however, affords no ground for granting a new trial; for the case is too clear for the Defendant, without this evidence, to he doubted. If this evidence were out of the case, the finding must have been the same; and were the finding otherwise, it would be erroneous.

The judgment of the Supi-eme Court must be affirmed.