Royal Indemnity Co. v. Preferred Accident Insurance , 276 N.Y.S. 313 ( 1934 )

Finch, P. J.

(dissenting). I dissent and vote to reverse and direct judgment for plaintiff upon the ground that the evidence adduced by defendant in support of the alleged parol agreement relied upon as a defense to the action, clearly violates the parol evidence rule, and was improperly admitted. Further, upon the ground that said alleged parol agreement is not established by the evidence, but, upon the contrary, the existence of any such agreement is negatived by the great weight of evidence.

The plaintiff sued to reform an agreement of reinsurance, and to recover upon the agreement as so reformed. The defendant conceded that there had been a mutual mistake and that the agreement should be reformed as requested by plaintiff.- The contract, as reformed, provided that defendant should reinsure plaintiff for $75,000 in connection with the guaranty by the latter of a series of gold notes aggregating $300,000.

The defendant, upon its part, sought reformation of the reinsurance agreement so as to change the amount of its possible liability to $50,000 instead of $75,000, and in addition set up a number of affirmative defenses, and the further plea that the contract was induced by certain alleged fraudulent representations and concealments, by reason whereof defendant claimed to be absolved of all indebtedness to plaintiff pursuant to the agreement.

The case of the plaintiff was prima facie established by the formal proof, and the trial centered upon the counterclaim and affirmative defenses. These the court sustained and granted judgment dismissing the complaint and in favor of defendant upon its counterclaim for $2,791.58, which amount defendant claimed to have paid to plaintiff in mistake of its obligation under the contract. The gist of the basis of the decision of the learned court is to be found in the tenth finding of fact, which recites: “ That relying upon the representations made by the plaintiff to the defendant as specified in finding of fact 6, and provided the plaintiff retained $100,000 of the risk, defendant agreed with plaintiff that it would take $50,000 of reinsurance and, provided the plaintiff retained $100,000 as co-reinsurer and reinsured $125,000 in addition to its $100,000 retention and the $50,000 acceptance of the defendant, defendant further agreed that if the last $25,000 was not reinsured, it would also take the last $25,000 in addition to the said $50,000.”

The written contract between the parties contains none of the aforesaid conditions. Proof thereof was predicated upon testimony of an alleged conversation between defendant’s superintendent and an alleged representative of the plaintiff deceased long prior to the trial. This evidence clearly violates the parol evidence rule. (Ruppert v. Singhi, 243 N. Y. 156; Mitchill v. Lath, 247 id. 377.)

In addition to a violation of the parol evidence rule as aforesaid, a further error of law was committed in admitting in evidence, over objection of the plaintiff, a written memorandum which McCrea testified he had made at the time of the aforesaid conversation, notwithstanding it was not even claimed to have been exhibited to plaintiff’s deceased alleged representative or its contents disclosed to him. To admit, under these circumstances, a memorandum corroborative of McCrea’s version of the alleged conversation, would be an opening of the door to fraud. As was well said in Meacham v. Pell (51 Barb. 65): “ It is indispensable to the admission in evidence of a memorandum made by a witness at the time of the making of an alleged agreement, that it be shown the witness has no recollection of the matters stated therein, independent of the written paper. If he has such recollection, the evidence is inadmissible.

“ Where a witness testifies fully to an interview between the parties, at which an agreement was entered into, a memorandum of the terms of such agreement, made by him at the time, is not admissible to corroborate the witness.

“ A party to an action should not be permitted to give in evidence a memorandum made by himself, to prove the terms of a contract between him and his adversary, which has been made by him privately, and never shown to the other party. Such a rule of evidence would open a door to frauds of the worst character.”

Not only was the aforesaid evidence inadmissible for the reason above stated, but it is contradicted by the records of both parties and, among others, by the following outstanding factual considerations:

(1) Defendant’s aforesaid representative, McCrea, testified that he had no conversations with any one concerning the risk until after he had signed the reinsurance contract. Thereafter, McCrea and Hoen, as representatives of the reinsurers, took charge of and managed the matter without any disclaimer of liability until subsequent to the loss.

(2) Defendant’s original answer is inconsistent with the conditions alleged in its amended answer and asserted upon the trial. Still another and different version was set forth in defendant’s bill of particulars.

(3) The undated written memorandum which McCrea testified he made of the aforesaid alleged conversation with plaintiff’s deceased representative contained no reference to any retention by plaintiff, reinsurance by others or contingency as to the amount of defendant’s reinsurance.

(4) A second dated memorandum, also made by McCrea at the time of the alleged conversation, and brought out under conditions indicating an intention on the part of defendant to suppress it, tends to show an unqualified acceptance by defendant for $50,000 of reinsurance.

(5) An entry of the transaction in defendant’s own acceptance register discovered upon cross-examination of defendant under circumstances indicating an intention to suppress knowledge of its existence, shows that long prior to the signing of the reinsurance contract the defendant had recorded an unconditional acceptance of $75,000. Other correspondence between the parties and records of the defendant indicate a recognition by the defendant at all times prior to the loss of an obligation based upon one-fourth of $300,000, or $75,000, instead of one-sixth, or $50,000, in accordance with defendant’s theory upon the trial.

The above-mentioned points but touch some of the high lights of the many inconsistencies in and contradictions of the evidence adduced by the defendant. Upon this record it is difficult to understand the conclusion arrived at upon the facts. Such conclusion can in no event be sustained as a matter of law, because, as noted, the evidence of the alleged oral agreement was inadmissible.

The judgment should be reversed, and judgment directed in favor of plaintiff as demanded in the complaint.

Judgment affirmed, with costs.