Vinal v. Continental Construction & Improvement Co. , 60 N.Y. Sup. Ct. 247 ( 1889 )

Learned, P. J.

We think that the opinion of the learned justice who decided the case is sound and able, and that it is really of little use to add anything to what he has said so well.

Tiie complaint speaks of a written and verbal agreement between Burt and the construction company. The appellant urges that no verbal agreement could be proved, for the reason that the written paper must be understood to embrace the whole agreement between the parties. That is a matter to be determined on the offer of proof at the trial. If testimony of a verbal agreement is offered and objected to, and if it "ought not to be received, then it will be excluded, and hence no such agreement will be proved. But the demurrer admits the agreement alleged in the complaint, just as if it had been proved without objection by the defendant at the trial; and if the defendant admits that it made an agreement there is no reason why it should not be required to perform it. It is not illegal or immoral that a person should make at the same time a verbal agreement and a written agreement. The rules of evidence may sometimes prevent the proving of conversations which led up to a written agreement, or which may seem to modify the writing which has finally been taken as the expression of the minds of the parties. What, under the rules of evidence, the plaintiff will be allowed to prove in the present case, is not a matter now before us.

The next question presented by the defendants is on the effect of the previous decision. Vinal v. Construction & Imp. Co., 32 Fed. Rep. 343. That action, as admitted by the demurrer, was one to recover damages against the company for a failure to perform the contract made between it and Burt. The decision, as so admitted, was upon the ground that it had been established in the suit by the attorney general that there was no consolidated railroad company, and therefore the construction company was excused from performing its contract with Burt; that is, it could not construct a railroad for a railroad company which had no existence, and which could therefore acquire no title to land, etc. Of course this decision, between these same parties, is conclusive here. It is settled, then, on this demurrer, that the construction company cannot carry out and perform the contract into which it entered with Burt.

Now, the question is presented in this case, as Burt paid the construction company a large amount of property as a consideration for the building of this new Boston, Hoosac Tunnel & Western Railroad Company, and as it cannot build such road, ought it to keep what Burt paid it? It would be unjust that it should do so, and some very strung reasons must be shown to maintain so unreasonable a position.

The defendant says that the parties contracted under a mutual mistake of law, not of fact; that is, the defendant says that they contracted upon the belief that the (consolidated) Boston, Hoosac Tunnel & Western Railroad Company was an existing corporation, and that this belief was not a belief of the existence of a fact, but of the existence of a rule of law; because the existence of the corporation depended on the validity of the proceedings taken by the former corporations to consolidate, and that such proceedings were legally invalid. How, it does not appear by the complaint upon what ground that attempted consolidation was adjudged to be illegal and void; whether the papers were not properly executed; whether the proper action was not taken by the old companies; or whether some other defect existed. If the decision in the attorney general’s suit was on any of these grounds, it would seem to have been based on a question of fact. If parties had made a contract on the belief that a deeeased'person had executed a will, and the fact proved to be that he bad never signed any paper purporting to be a will, we should hardly think that this was a mistake of law. Hor do we feel by any means confident that, even if the decision in the attorney general’s suit was based on some ground other than imperfection in the consolidation proceedings,—if it were based, for instance, on the inability under the statute of these companies to consolidate,—that even then a mistake as to the existence of the consolidated company would be a mistake of law. But we need not pass on that. These parties were not residents of Hew York, and their contract, so far as appears, was not executed in Hew York. Foreign laws (including laws of other states) ■are facts. The presumption that every one knows the laws of his own state is hard enough. He never is presumed to know the laws of all the other states in this country, and the laws of all the nations of the world. The cases cited by defendant are no exception. Carpentier v. Minturn, 6 Lans. 56, was an action on a note made in California, under a contract made in California in regard to business in California, and the question was as to the knowledge of the law of California. So, in Holdredge v. Webb, 64 Barb. 9, the contract was in Hew York, and the question was as to the laws of Hew York. Heither of these decisions, therefore, disturb the doctrine that to parties residing and ■contracting in one country the laws of another country are matters of fact, not of law.

There is still a further consideration. A statute exists in this state authorizing consolidation of railroad companies in certain cases. Suppose that these parties were bound to take knowledge of that statute. Were they bound to know whether, in this particular case, these railroad companies could consolidate? That question might depend, and probably did, on certain facts, and as to these facts the parties might make a mistake. Or, even if they knew all the facts, are they bound to know how the courts will apply the statute to the facts; that is, are they bound to know this in such a way that the ignorance of what the result of such application will be is ignorance or mistake of law? The defendant insists that the belief of Burt and the defendant that the (consolidated) Boston, Hoosac Tunnel & Western Railroad Company was a corporation in existence was a mistake of law, because subsequently the court decided that that company was' not a corporation. We should be unwilling to take that view, in our present judgment, upon the arguments of counsel.

The defendant’s counsel urges on our consideration (as was urged below) the case of Steinbaeh v. Insurance Co., 77 N. Y. 498. The plaintiff had brought an action on a policy of insurance, and had been defeated on the ground of his violation of one of the clauses. He then brought that action to reform the policy by making a modification of that clause, and the relief was denied. That is not like the present case. Here the plaintiff sued for damages for breach of the contract. He was defeated on the ground that, although the defendant had broken the contract, yet it was excused from performance because performance was impossible. How that plaintiff claims that, since performance has become impossible, he should recover back that which he gave as a consideration for tlie promised performance. The actions are not inconsistent, one with the other. We are of the opinion that the judgment of the special term was correct, and that it should be affirmed, with costs, with the usual leave to withdraw demurrer, and answer over on payment of costs. All concur.