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    EVID

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
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    9 views7 pages

    Mitchill V Lath

    Uploaded by

    noonalaw
    EVID

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
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    of 7
    316 Res ». Teacuens’ Rertameasr Bose, ITN ST) _Opnve poe Ansan re, tiven, the dotails are fixed. This statement is to be verified by the Board. ‘Theve can bo little oom for di ppule. Tk then issues to the teacher a cetifeate as to the agerogsta time of past aarvioe. This i conclusive unless mosifid by the Board or by the Board of Eduea- tion (H). So when application for retirement is made all the Board may do isto examine this oxrifeate, 1f retirement is asked bocause the ago of 85 is reached. ‘or required because the teaser is 70 the Boord alsa has no diserotion. In the fow casse where there may be oubt, doubtles it will refuse to order warrent until in some manner, by mandamus or otherwise, a judicial decison as to the fast ie obtained, But no ‘sil befone the Boned is provided. The teacher has an abeckuve ight to retire at 65. He must retire at 710 but eannot be forced to retire before unless disabled. No dispute, therefore, as to retiremeut is to be settled by the Board except the preliminary and nartow question as to. the credit for gervice rendered before 1917, to be alowed 2 ‘wacher, His sevice thereafter is a fnatter of oficial resord, Ts view of the sight field of sation as to retieement sganted to the Board it would not seam possible that the Legislature, in peaking of "2 decision” in another part of the seston, intended to rostiet it to a determination ns to cortfcata in the limited cess of eases destibed, ‘Aetion requizd by the act tell could hardly be called *adecision ofthe retirement boutd.” A decision implies the pomer to say “ Yes” or “ No.” Clearly the adoption of morality tables, the investment of ie funds, the pare chase and sl of seouities invalve e more important ‘exervse of discretion, x moro important choice between altemative eousea of action than » dedkion that Ais to be crated with 5 or © years of rorviee, The intesity of the fund itself depends upon whet eouree the Board adopts. Hee the beneliciavies of the trust have a vital interes Tt is not umtessonable thst the Legislature ‘Miveumts » Lams, 317 aay Stamcmtoteam TNS ‘thought they should have through thei representatives ‘8 veto power. We conch that this was the design, 1 the adoption of mortality table or the designation of investments is a decision ” then the appoiatnent of souetary is one also. No distinction ean be drawn. Vader the siinte the offieo is an important one, ‘The ‘section of proper eandidate may involve questions of Policy, provoke differences ef opinion. We bold that the ‘choice ia desision ofthe board” end may not be made without the concurrence of ane member of the teacher representatives Some amendments havo been added since the orginal statute was adopted. That of May, 1920, in a limited lass of oases, permits the Board upon evidence, to deer- zine certain facts. Te in no way aifecte our tonclsson ‘8 to the original meaning of the Lagilature, ‘The order of the Appellate Division should be reversed and that of the Special Term affzmed, with cent to the ‘sppellants inthis eourtand in the Appellate Division, and ‘the question carifed answered in the affirmative Canvone, Ch. J, Poon, Cause, Lemna and Kwiro0a, JU, conour; Outen, J, dissent Ordered accordingly Canaan C. Miron, Respondent, » Cranes Lamm ot ah, Appaliats, Senet — specie prormnon— oral aroma 0 eloly rotated to wubject dull ith In written conaract at fe ae ‘at be proved whara Tete eeldant tet plate wor ty Dense, oniract mado with her tend aunt be sented Sitmade by he 1, Wate pil ane int 9 rita aeeaneet to partie ‘rl ecnety om nats ontanng pe pvios eo he Ses e ah ofthe patio thet,» clara el greene ‘the rte detente f remorse eae by tad {ssn he popes em cody std Yon talent dae th {the wes arms tat ey not ba provel i a tatoo ‘ompl it ele pean, 318 Doseu 0. Laws, aN Polat comm ma 2, Noe this ange by th Fst tt wil he ral erm vue yas mace hy te plat in smi ot me was Wet Tend dso anemia of I tm im apes er he dock ‘oven to beanie tt nth ten Sw Bsa on (gun Zune 10 195; eed Peder 14,1908) Acreaty by permission, from @ judgment of the Appel- lote Divison of the Supreme Court in the sesand judicial department, entered May 27, 1927, unanimowsy affrm- ings judgment in favor of plain entered upon » decision ‘of the court on tral at Special Term in an action to compel specific performance of an alleged contract. to remove at ice house. Fores G. Meyer, John 2. Kally and Daniel A. Dugan. for appellants. Tho court ered in destroying the con ‘act hy receiving evidence of prior negotiations. (New- unger v. Am. Surety Co, 242 N.Y. 194; Filking v. ‘Whylond, 24 N. ¥. 288; Higimiev, Toylor, 98 N.Y. 288; ‘Emmett v. Penoyer, 61 N.Y. 564; Sturmer v. Sounders, TIT App. Div. 762; Marsh v. MeNair, 99 N. Y. 174; ossing ¥. Cushman, 125. App. Div. 089; 105 N.Y. 856) "The ease at bari nt within tho exception t the general rue that evidenee of parol agreements may not be recived fo contrat or vary the terms of an instrument in writing, (Thomas v. Seu, 127 N. Y. 188) Howe vy, Wat ta N48 Mand w. Daly AN. Yo 08 ndwell v. Buth Coy 208 N.Y. 410; Newburger ve “American Suwaly Ce, 262 N.Y, 194) Aviher Hl Haaren for sespondent. Specie perform: ance of defendants’ oral contract was properly” granted low. (Rintdon v. Schafer, 158 App. Div. 477) The parol evidence rule has not been violated and no other found for reversal has been shown. (Waubuegerv Meron , Laos. 39 toon Opin, per Avon Je BTN FT ‘Ao. Surety Co,, 22 N.Y. 194; Fndll v, Laster, 180 ‘App. Div. 848; Pinkie v. Lasher, 178 App. Div. 471; Brown v. De Groff, 188 App..Div. 177; Amer, Andine Products Co. v. Matai Coy 190 App. Div. 485; Taylor -y. Hopper, 62 N. ¥. 6493 Zab v. Van Hoos, 141 N.Y. Supp. 400; MCrea v. Purmor, 16 Wend: 400; Hosking Valley Ry. Co. v. Barkow, 192 App. Div. 864; Post v. ‘Thomas, 180 App. Div. 627) ‘The injusction prayed for Ya pop ee.” Oras Shes 28H, Awonzws, J. Tn the fall of 1928 the Laths owned‘ farm ‘This thay wished to sll. Across the rond, on land belong Ing to Lieutensht-Coveror Lana, they had an ice house ‘which they might remove. Mrz Mitehill Tooked over the land with @ vow to ite purchase. She found the ioe house objectionable. ‘Thereuposs the defendants orally promised and agreed, for and in considerstion of the Murehuse of their farm by the plant, to remove the sid fee house in the spring of 1924." “Telying upon this promise, sho made a waitan contrac to buy the property {or'8,400, french and» morignge and containing various provisos usual in auch papers. Later receiving a deed, ‘the enterod into possesion and has spent considerable sums in improving the property for use as a summer Tesidence. Thé defendants have nt fulilled theis promise 18 to the ice house and do not intend to do so. We ace not dealing, however, with their moral delinquencies ‘The question befor us Is whather their oral agreement may be enforced in a court of equity. ‘This requires'adiseasion of the eral evidence rule — ‘rule of law which defines the Iiite of the contract to be construed. (Gaskin v. Bont, 228 Mace. 316.) It is ‘ore than a'r of evidence and orl testimony even if audmitted will not control th wetion eontraet (O'Malley v. Grady, 222 Maes. 202), unless admittad without objection, (Brady v. Nally, 151 N.Y. 258.) Teapplies, however, to ttempis to modify auch a contrat by parol.” Tt doesnot { 380 Moment». Law. (N.Y. 577 Opinion pr Anonewn Pa, affect a parol collateral contract distinot from and Independent of the wrtien agrowment. It is, at ties, troublesome to draw the line. Williston, in his work ‘on Contiasts (e637) points out the difially. "To cntialy distint contracts,” he says, each for © separate ‘consideration may be made at the some time and wil be istinet legally. Whete, however, one. agreement Is entered into wholly or partly in eomsiderstion of the simultaneous ogrocment enter into asiother, the trant. ‘otions are neeessurly bound together. * * * ‘Then if one of the agreements i oral and the other is written, the problem arises whether the bond is eulficently close to prevent proof of the oral agreement.” ‘That is the situation here. Te is claimed that the defendaats are ‘led upon fo do more tian is roqured by their witten ‘contract in connection with the ale ns to which it deals ‘The principle may be clear, but it ean be given effect bby no mechanial rule, As so often happens, tiga matter of degen, for as Professor Wiliston also says where ‘contract contains several promises on etch side itis not Aifieatt to put any one of them isthe form of «eallateral agreement, If this were enouglt waltten contracts might always be modified by pasol. Not form, but substance is he test, 1 applying this test the poliey of our courts is to be eansidered. We have believed that the purpose bebind fhe rule was o wise one not ensly to be absadoned, ‘Notwithstanding injustice here and there, on the whole it works for good. Old precedente and prineples are not to be lightly cast aside unless i i certain that they sre an obsituction under prevent conditions. New York ‘has been lees open to ‘aegumente that would modify this particular rule, than some juvisdictions elaowhere. ‘Thus in Bighnie v. Peylor (08 N. ¥. 288) it was bald that « parol warranty might not be shown although no ‘warranties were contained in the writing. ‘Under our decisions before such an oral agreement ‘Maroum», Lam. 881 teas Opin pe Anbar BANE 3 the prosent is received to vary the written contract atleast three conditions must exist, (1) tbe agreement Bust forme 9 else oe it ut tact trait express ot implied provisions ‘wet contract; () it must bo one that parties would not condinaily be expected to embody in the writing; oF put fn another way, an inspection of the written contrac, ‘ead in the light of surrounding ceumetances mast not indicat thatthe writing appons “to contain the engnge- ‘ments ofthe purties, ed to define the objet and mearure ‘the extent of auch engagement.” Or again must not be clearly eonioctod with the prineipl trensation as to ‘The respondent dops not antaty the third of theoe requirements, Tt muy be, not the sooond. We heve « wridten eontract for the purchase and sale of land. The buyer i-to pay $8,400 inthe way described. he ie also Gipey hor portion of-any rents interest on mortgages, ‘ipauranbe premiums and water meter charges. She ms¥ we-a survey made of the premises. On their part the SHEL am a tl eee ioe re eee a described, or as they may be desribed by the eurveyor Sf the survey 4s had, exeouted and acknowledged at their ‘own expense; they sell the personal property on the farm sad represent they own it; thoy agree that all spouted het co fn cotta te xs of cremining the tile’ shall bo a lien-on the property; they ‘assume the risk of foss or damage by fire until the dee is delivered; and they agree to pay the broker hia eom- risions. Are thoy to do move?” Or is such claim Inconsistent with thea precise provisions? Tt eould not be shown that the plaintiff was to pay $500 additional, 1s it aloo impli thet the defendants are not to do any- ‘hing uneqpresed in the woting? ‘That we need not decide. At leah, however, an inspeetion of this eoptruet shows a full and complete ‘agreement, setting forth in dotll the obligations of esc 392 Morena 2. Lava ATW. YST7) Opin, oe Ansan. Pa, party. On reading it one would conclude that the reciprocal obligations of the partes were fully detailed. ‘Nor would his opinion alter if he knew the surrounding cérvumstanees. “The presence of the ice house, even the Inowledge that Mre. Mitehill thought it objetionable ‘would not lead to the baie! that a separate agreement existed with regard to it. Were such an_agreameat rade it would seem most natural that the inquirer should find it in the eontenet. Collateral in form it ie found to be, but itis closely related to the subject dealt with in the ‘written agreement — so closely that we hold 1 mey not be proved. ‘Where the line between the competent and the incom- potent is narrow the eltation of authorities ie of slight toe. Bach represnte the judgment of the eourt on the recite facts bloc it. Hav eloaly hound to the eantract Is the supposed collateral agreement isthe decisive fastar in each ease. But reference may be made to Jolnuon ¥. Oppenheim (85 N. ¥. 250, 202); Thomas v. Seu (127 N.Y, 188); Bighmie v. ‘Foylar (08 N. ¥. 285); Stowe ¥. Greenvich ne. Co. (168 N.Y. 208); Nowburyor ¥. Amerivan Surely Co. (282 N.Y. 194); Lowe v. Hamel (69 App. Div. 800); Daly v. Pisa (108 App. Div. 498); Seite v. Brewers Refrigerating Co. (41 U, 8, 510); ‘American Locomatin Co, v. Nat, Grocery Co, (228 Mass, 314); Dope v. Dizon (12 Allen, 876). Of these citer tions, Johnson v. Oppenten andthe two i the Appellate Division felate to collateral eontracteexid to have been the inducing cause of the main contract, "They refer to leases. “A similar ease is Wile . Doon (74 N. Y. 581). All hold that an ora etipuation, said to have been the inducing cause for tho subsequent execution of the eos iteell,conterning some act ta be done by the land lend, or sme condition as tothe lased promises, might not be shown. Tn principle they are ot unlike the case before us. Attention should be called also to Taylor v. Hopper (62 N. Y. 040), whore tis asumed that evidence Moremi. Lam. 383 ea Orion pe Anta 3. AN. ¥. BH ol parol agreement to remove bara, whi wan an Inducenent tothe sl of lot, vas imreper “We do not ignore th fact that euttries may be found that would sem to support tbe eotention of the ‘ppallat- Such ate Braking ve Adeone (Lv FL8 Ch App 158) and Morpanv. Griih (Le Be © Bash To), where bough thee wis writen lene colsteralagrecment af the landlord to redoce the gene was admaiiel In {his Sate Witton vy Down might led to the conieey real, Nites are they approved in Now ery (Neus tery ¥. Young, 16 Vroom, 03). Nor in View of Iter cous i this court ean Baiermon,y. Pier (8 EL, 171) Be considered an authority. "Aline of exes in Meee hist, af whith Diskin v. Clgh (195° Mas 108) isan example have to do with collateral contracts ade before @ det ie given. ‘But the fined form of 4 doo! rakes {it nappropite to insert caltra agreement, however clay eonneted withthe asl "This may Be cate fot an ezeption. Here we deal wit the contact nthe ni of whch the deed to Mis th was given Subeoenty, and i confine ourselves to the gut ‘Whether een tay be mood Finally ere he coe of Chapin v. Debon (18. Y. 174,70). Thins acknowledged tobe onthe border ie Js rarely gd except tobe ditingusied, Aung tho renies, hoverer, the caine wan cleany right hare tos nothing onthe feof the ween satel, i ald, {o how thi intended fo exe the ae agrtmant, ‘And there was nding euitned by evidence, tha ero ‘rasan entire contract aly art of which was reduced {o writing. ‘This bing so the contact as nade might te proved, his argued iat what we have seid isnot eplcable to the case ax presented. "The cletaralngremment an rade withthe plain,” Tho contact of sale waa wath hor husband solo asgnment of i rom him appears “Yes the deed was give to hers tle orient tant ere 304 Mrmewu o, Lama, Mrvosi'y Lame, 885 (2a X.Y. 77) Dimeting opinion, por Lee J me ‘ay Diwan pian oe Dewan pa NY. A ‘was « transaction in whieh abe seas the principal fom Doginning to end. We must trest the contract as i in form, ue i wae infact, made by ber. ‘Our conclusion is that tie judgment of the: Appallat Division and that of the Special Term should be reversed snd the complaint dismissed, with eoste i all courte Leroux, J. (dssonting). T aoe the general rule as formulated by Judge Axconeves. I difer with him only as to its application to the facte shown in the reaoed. ‘The plintitcontracted to purse and from the dafend= ants for an agreed price. formal written agresment ‘was made betiteca the sellers and the plaitil’s husbend. Tt is on its face « complet contract for the conveyance ‘of the land, It deserbes the property to be conveyed. 1 aots forth the purchase’ price to be paid. All the ‘conditions and tarme of the conveyance to be made are

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