Thorp v. Ross , 4 Abb. Ct. App. 416 ( 1868 )

By the Court.

Woodruff, J.

The judgment herein cannot, I think, be sustained upon the grounds upon which the decision was placed by the referee, or by the supreme court, to wit, that the parol agreement of the plaintiffs to pay the license fee for tapping the sewer, made cotemporáneously with the execution of the written agreement, was binding upon them though not included in the writing, because it was a separate or collateral undertaking.

.The defendant -agreed, in writing, to pay to the plaintiffs four thousand seven hundred dollars, and no more.

The plaintiffs, on the other hand, agreed, by the writing, .that for that four thousand seven hundred dollars they would tdo and perform certain work, labor, &c., mentioned therein.

Now to permit the defendant to show, that it was, at the time of the making of the agreement, verbally stipulated that for that same four thousand seven hundred dollars the plaintiffs should do" or pay anything which the writing did not expressly nor impliedly embrace and bind them to do or pay, is to allow the written contract to be altered by parol. Just as much so as it would be altered by permitting the plaintiffs to prove, that, besides the payment of the four thousand seven hundred dollars, the defendant was to do or pay something else as a further compensation for what the plaintiffs, by the writing, agreed on their part to do.

Whatever the plaintiffs were bound to do, was to be paid for by the four thousand seven hundred dollars. Whatever the defendant was bound to pay was to be recompensed by just what the plaintiffs agreed to do. And to each of them the writing is the sole and exclusive evidence. It was not, therefore, competent to show by parol, that for this same four thousand seven hundred dollars the plaintiffs were also to do somethiug which the written agreement did not bind them to do.

It is insisted that the fair interpretation of the writing bound the plaintiffs to perform the work of tapping the sewer, and therefore, by implication, bound them to pay the license fee, without the prepayment of which they could not perform the work.

I express no opinion upon the construction of the contract in that respect, nor on the supposed implication.

My conclusion is, that the judgment should be affirmed upon this very brief statement of the right and duty of the parties, viz.:

The plaintiffs were bound by the true meaning and effect of the written agreement, to procure the license to tap the sewer, and pay therefor, or they were not so bound.

If they were bound by the writing to procure the license and pay therefor, then, of course, they can not recover it from the defendant.

If they were not so bound, then they have paid the money without the defendant’s request, and without any authority to pay money on his account; it was a voluntary payment, and imposed on him no legal obligation to refund.

Ifc is asked, were the plaintiffs (if not themselves bound to pay the license fee), bound to suffer the performance of the work to be defeated by the defendant’s non-payment of the license fee, and so lose the profits of their contract ?

By no means. Doing on their own part all that they were bound by their contract to do, or all that they could lawfully do, if the defendant failed to remove any obstacle to the complete performance which it was his duty to remove, his neglect or refusal would be to them a perfect excuse, and they could recover all the value of their contract.

If a builder contracts with another to build for him a house upon a specified lot of land, but finds, when he begins to build, that another is in possession, and is, in fact, the owner, the builder can not purchase the lot for the contracting party and recover from him the price paid, on the idea that without such purchase he could not perform his contract and realize the profits thereof.

Or if he finds the lot in the possession of a tenant under an unexpired lease, he can not purchase the unexpired term and charge the purchase money to the contracting owner of the fee.

And so, generally, where one has contracted to perform work, &c., of the description in question, if he find obstacles in the way which can not be removed without the payment of money, and it is the duty of the party contracted with to remove such obstacles, and so enable him to perform his contract, he may require such party to remove them, and if such party refuse he will be excused pro tanto from the performance of his contract, and may recover his full profits, but he can not volunteer to pay the money himself, and then compel the other to repay that which he had refused to pay. It would be strange if a request that the plaintiff pay money could be implied from the refusal of the defendant to pay it.

Upon this ground the judgment must be affirmed..

All the judges were understood to concur in holding the parol evidence inadmissible ; a majority concurred in the foregoing opinion for affirmance on the other ground.

Judgment affirmed, with costs.