Koenig v. Vidaver ( 1915 )

LEHMAN, J.

The plaintiff sues the defendants upon an agreement to indemnify the plaintiff from liability upon a promissory note which the plaintiff made for the accommodation of the Mill & Factory Sales Company. The defendant Vidaver attempted to plead a subsequent agreement by the plaintiff to hold him harmless from all liability under the indemnity agreement. The alleged consideration for the agreement of the plaintiff was an agreement on the part of the defendant Nathan Vidaver and his brother, Maxwell Vidaver, to present to the treasury of the Mill & Factory Sales Company the stock which they had acquired in that corporation, and to resign as officers and directors of the corporation, and to elect the plaintiff president thereof and allow him to choose his own board of directors.

At the trial it appeared that on February 12, 1913, this defendant and Maxwell Vidaver entered into a written agreement with this plaintiff to transfer, set over, and assign their stock in the Mill & Factory Sales Company, and while that written agreement contains covenants on the part of the plaintiff it is silent as to any agreement on the plaintiff’s part to release the defendant or hold him harmless from liability under the indemnity agreement. The defendant, however, was permitted to show that, after he had signed the written agreement, he refused to deliver it unless plaintiff agreed to hold him harmless from further liability on the indemnity agreement in consideration of his turning over the stock and signing the agreement. The plaintiff contended that such evidence constitutes a variance by paroi of the written agreement, and was therefore inadmissible.

The written agreement provides for the assignment by Nathan Vidaver and Maxwell Vidaver, who are described therein as parties of the second part, to Albert S. Koenig and Charles L. Feldman (who are described therein as parties of the first part), “as trustees for the Mill & Factory Sales Company,” certain certificates of stock, and further provides exactly how the “parties of the first part” shall dispose of the proceeds of the shares so transferred. The contract is complete in itself, and I quite agree with the view that the assignors of the stock could not by paroi show that the assignees made any other and further agreement as considerations for such transfer. The evidence offered by the plaintiff is, however, offered for a different purpose. He seeks to show that, before he would deliver the agreement and the stock, he personally required from Koenig personally a release from liability under a contract of indemnity which he had previously made with Koenig. Although Koenig is the only one of the parties of the first part who signed the contract, and he signed it in his personal capacity and not as trustee, yet the contract shows on its fact, and recites that it is made for the purpose of paying the debts of the company. So far as Koenig’s written agreement is concerned, it is evident that it is only made for the benefit of the company, and it is made, not with the defendant alone, but with him and his brother.

[1] The additional paroi agreement which the defendant established does not concern the company, nor does it concern Feldman, who-is described as one of the parties of the first part, nor does it concern Maxwell Vidaver. It seems to me that under these circumstances it is dearly an independent agreement, which does not enlarge or modify the original agreement. The written agreement expresses the complete agreement by virtue of which the defendant and his brother Maxwell transferred the stock to the plaintiff and the other assignee for the benefit of the corporation. The other assignee did not sign the instrument, yet on its face it shows that he was intended to become a party to it. Neither he nor Maxwell Vidaver were parties to the indemnity agreement previously made, and are not parties to the alleged contract of release. The contract of release could not, therefore, have been made a part of the written contract. At most, the parties could physically have appended to the written contract a further contract between some, but not all, of the parties to settle their individual rights. The only connection between the two contracts consists in the fact that the consideration for the plaintiff’s alleged agreements was the signing by the defendant of the written agreement.

[2] There are many cases in the courts where paroi agreements, even between the same parties, have been held not to vary the written contract, where the paroi agreement is the consideration and the inducing cause for the signing of the written agreement, provided the paroi agreement does not concern the direct subject of the written agreement. The leading case on this subject in this state seems to he the case of Chapin v. Dobson, 78 N. Y. 74, 34 Am. Rep. 512, and, though the direct decision in that case has been frequently explained, criticized, and I believe limited, by subsequent cases, the principle of law upon which the decision is founded has never, so far as I know, been questioned.

Judgment should therefore be affirmed, with costs.

FINCH, J„ concurs.