Ward v. Cowdrey , 21 N.Y. St. Rep. 372 ( 1889 )

Brady, J.

What is called the “last paper writing” between the parties, (appearing in the statement of facts prepared by the respondents, and which is regarded as substantially correct,) bearing date March 3, 1884, was executed, it is true, after the parties had consulted about and determined upon the result of their business transactions. This distinctly appears from the statement in that paper: “Por one dollar and other valuable considerations, the receipt whereof is acknowledged, and considering the agreements and promises existing between Charles I-I. Ward and myself.” But it also distinctly appears that it did not embrace all the items or terms of the settlement, exclusive of the Vivanco claim. Other matters were arranged for, which were not included in that paper. This controversy does not depend, therefore, wholly upon the construction of that instrument, or indeed its enlargement by paroi. It cannot be regarded as controlling except as to the items contained in it, inasmuch as it does not embrace all the disputed items which were settled and to some extent paid. Even when an executive agreement has been made, if the fact be shown that there was a distinct collateral verbal agreement between the parties not inconsistent with the original contract, the law does not prohibit such distinct collateral agreement from being enforced. Jones v. Jones, 18 Hun, 442. And this enunciation is sustained by numerous authorities. In other words, if it be clear upon the whole evidence that the instrument relied upon or involved did not contain the whole agreement, and a distinct collateral contract . was proved, not inconsistent with the written one, the law will not prohibit the enforcement of such a collateral undertaking. The facts in this case show that the payment of the S3,000 arising out of the Vivanco claim, which was the only one allowed by the referee, was not embraced in the written agreement, but was a part of the compromise agreed upon by Mr. Cowdrey, together with others not mentioned. The testimony relating to it, and sufficient to sustain it, was received, it seems, substantially without objection. It must be said, however, that the written paper containing a part only of the terms of settlement or compromise does not rise to the dignity of a contract ab origine. It relates, it is true, to contracts made and entered upon, the results and the responsibilities incurred, and their adjustment by the parties whose business relations were to be severed and ended, but in part only, and no court would exclude from examination and consideration anything omitted from a memorandum under such circumstances. The same rule applicable to a receipt in full should prevail where the settlement is partly in writing and partly oral. The whole subject should be open to discussion when a controversy arises between the parties under such circumstances. This result cannot well be avoided. In McDougall v. Cooper, 31 N. Y. 498, it was held that where there has been an accounting and settlement, if it afterwards appear that a clear mistake occurred by the omission to include a considerable sum of money, an action will lie to correct such mistake, and to collect such sum, and this although the settlement was in writing, and a due-bill given. The proposition that the promise to pay Vivanco could be enforced by him against the estate of Mr. Cowdrey is untenable in the absence of proof that he knew of the arrangement, and accepted or acquiesced in the proposition. The plaintiff was not obliged to wait his pleasure if he knew anything about it. He could, as he did, bring an action, and leave the defendant to prove such facts as deprived him of the right to enforce his claim. The promise of payment established the liability of Mr. Cowdrey to that amount as one of the items in the compromise, and rested upon a consideration duly discussed and disposed of.

The appellant complains of the unreliability of the evidence by which the demand is established, but as long as oral admissions and statements are received to prove a claim they must be considered and given their proper force and effect. The proof here was that the Vivanco claim was for supplies to the mill of Mr. Cowdrey, for which the plaintiff had made his persona! draft, and obtained in that way the money from Vivanco. There was no contradiction of this testimony, and it was shown that Mr. Cowdrey, after the settlement, gave a certificate commending the plaintiff. It also appears from the letters written by Mr. Cowdrey that he had full confidence in the plaintiff’s integrity. These incidents were well calculated to impress the learned referee with the good faith of the asserted claim, and make the admissions and statements now denounced acceptable. The examination of the case leads, therefore, to the conclusion that the judgment appealed from cannot be disturbed, none of the exceptions taken being of sufficient force to require a different result. The questions considered are the only ones which demand particular mention. Order accordingly. All concur.