Fourth Department, December, 1916.

[Vol. 175.

MARY PRYOR EASTMAN, Respondent, v. WILLIS N. BRITTON, Appellant, Impleaded with LOTTIE BRITTON, His Wife, Defendant.

Fourth Department, December 6, 1916.

Evidence - parol evidence to vary written contract—contract for sale of house and lot - implied warranty as to foundation wall. Where, in an action for the breach of an alleged parol warranty of the foundation wall of a dwelling house, it appears that the parties had entered into a written agreement for the sale of the property, which constituted a complete contract covering all the terms of sale, testimony of conversations prior to and at the time of the signing of the contract to the effect that the defendant guaranteed the foundation wall to be a good and sufficient wall, tends to vary the terms of the written contract and is, therefore, inadmissible.

There was no implied warranty as to the sufficiency of the wall.

APPEAL by the defendant, Willis N. Britton, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 17th day of June, 1915, upon the verdict of a jury, and also from an order entered in said clerk's office on the 29th day of March, 1916, denying defendant's motion for a new trial made upon the minutes.

Charles B. Bechtold [McInerney & Bechtold, attorneys], for the appellant.

John H. Hopkins, for the respondent.

PER CURIAM:

Plaintiff has recovered a verdict for breach of an alleged parol warranty of the foundation wall of a dwelling house. The dwelling was in process of construction by defendant at the time plaintiff began negotiations with defendant for its purchase. The roof was on and it was ready for the plastering. On January 11, 1911, the parties entered into a written contract for sale of the property by defendant to plaintiff. It appears on its face to be a complete contract covering all the terms of sale, and all defendant was to do was to finish the

App. Div.]

Fourth Department, December 1916.

house and to grade the lot, put in sewer and sidewalks and set out trees.

Plaintiff was allowed to give testimony of conversations prior to and at the time of signing this contract to the effect that defendant guaranteed the foundation wall to be a good and sufficient wall. We are of opinion that this testimony tended to vary the terms of the written contract, and that defendant's objection to its admission on that ground should have been sustained. We refer to the following authorities in support of this conclusion: Eighmie v. Taylor (98 N. Y. 288); Thomas v. Scutt (127 id. 133); Mead v. Dunlevie (174 id. 108); Lese v. Lamprecht (196 id. 32); Studwell v. Bush Co. (206 id. 416); Seitz v. Brewers' Refrigerating Co. (141 U. S. 510); Colt v. Demarest & Co.(159 App. Div. 394).

We are also of opinion that there was no implied warranty as to the sufficiency of this wall.

The judgment and order should, therefore, be reversed, and a new trial ordered, with costs to the defendant to abide the event.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.

THE WEST END BREWING COMPANY, Appellant, v. UTICA TRUST AND DEPOSIT COMPANY and SUSIE CRIMMINS, as Executors, etc., of DAVID J. CRIMMINS, Deceased, Respondents.

Fourth Department, December 6, 1916.

Decedent's estate. evidence — incompetency of witness under section 829 of Code of Civil Procedure to testify respecting personal transactions with decedent.

In an action against executors to recover for goods alleged to have been sold and delivered to the decedent, a witness, interested in the question as to whether the sale was made to the decedent, as contended by the plaintiff, or to such witness, as contended by the defendant, is not incompetent to testify against the executors under section 829 of the

Fourth Department, December, 1916.

[Vol. 175.

Code of Civil Procedure respecting a personal transaction with the decedent, because it cannot be said that he will either gain or lose by the direct legal operation and effect of the judgment, or that the record will be legal evidence for or against him in some other action.

APPEAL by the plaintiff, The West End Brewing Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Oneida on the 20th day of October, 1915, upon the verdict of a jury, and also from an order entered in said clerk's office on the 19th day of November, 1915, denying plaintiff's motion for a new trial made upon the minutes.

Henry F. & James Coupe [James Coupe of counsel], for the appellant.

Albert T. Wilkinson, for the respondents.

KRUSE, P. J.:

We are of the opinion that the trial court erred in ruling that the witness Daniel H. Crimmins was an incompetent witness to testify against the defendant executors under section 829 of the Code of Civil Procedure respecting a personal transaction with their deceased. It is true that the witness was vitally interested in the question in controversy, namely, whether the sale was made to the deceased as contended by the plaintiff, or to the witness, as contended by the defendants. But that simply goes to the credibility of his testimony and not to his competency, unless it can be said that he will either gain or lose by the direct legal operation and effect of the judgment, or that the record will be legal evidence for or against him in in some other action.

The question was very fully discussed in Eisenlord v. Clum (126 N. Y. 552), which was an action in ejectment to recover certain lands of which Eisenlord died seized, and the conclusion there reached was that it was not intended by the provisions contained in section 829 of the Code to enlarge the class to be excluded by reason of interest, beyond the commonlaw rule excluding interested witnesses; and it was held that the mother of the plaintiff in that action was a competent witness to prove her marriage to Eisenlord, whose son plaintiff

App. Div.]

Fourth Department, December, 1916.

claimed to be and to whose title he claimed to have succeeded as heir at law. The holding of the General Term, that the witness was excluded by reason of interest because the judgment would furnish evidence to establish her claim to dower in the premises, was disapproved, and it was held that such a judgment would not be admissible in evidence, either for or against the witness. Wallace v. Straus (113 N. Y. 238) was an action upon a contract of guaranty, and it was there held that the guarantor's principal was a competent witness and not interested in the event of the action within the meaning of section 829 so as to preclude him from testifying to a personal transaction with plaintiff's testator, to whom the contract of guaranty was given, the court saying that the judgment against the surety would not be an adjudication as against his principal that the surety had incurred any liability for which he was entitled to indemnity, the principal not being a party to the action, and it not appearing that any notice had been given him by the surety to defend the action or that he had undertaken the defense thereof.

So here, it seems clear that any judgment in this action, whether for or against the defendants, could not affect the witness by direct legal operation, nor would the record be legal evidence for or against him in any other action.

Many other decisions of the appellate courts of this State might be cited to sustain the conclusion here reached, but it does not seem necessary to collate or discuss them. The rule itself is well settled, though its application is not always free from difficulty. I think there must be a new trial.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.

First Department, December, 1916.

[Vol. 175.

CHARLES F. HOFFERBERTH, Appellant, v. ALFRED W. DUCKETT,

Equitable assignment by corporation to its president -action to recover moneys collected and received for use and benefit of plaintiff - pleading failure to allege assignment to plaintiff-evidence establishing equitable assignment - form of such assignmentassignment of moneys to be collected - enforcement in equity — evidence as to oral assignment.

In an action to recover moneys alleged to have been collected and received by the defendant for the use and benefit of the plaintiff, it appeared that the plaintiff, the president and director of a corporation, through the defendant, a shipbroker, had chartered a steamship; that thereafter the plaintiff had personally advanced a large amount of money to his company and had become personally liable for the amount payable to the owner for the hire of the steamer, pursuant to a verbal agreement with the directors that the moneys collected from the trips of the steamer in excess of the expenses should be turned over to him; that thereafter he by letter authorized the defendant to make collections and remit to him; that subsequently the board of directors unanimously approved the action of the plaintiff in advancing the moneys and adopted a resolution providing "that any moneys collected from any outstanding indebtedness be applied in payment of moneys borrowed by Mr. Hofferberth and to be retained by him." The outstanding claims were then in the hands of the defendant, under written authority to collect and remit to the plaintiff.

Held, that the contention of the defendant that the complaint was properly dismissed for the reason that the moneys in his possession were collected on accounts owing to the plaintiff's corporation, and that no assignment thereof was pleaded, was properly overruled, because in an action for money had and received to the use of the plaintiff, it was unnecessary for the plaintiff to allege the source of his title or the facts or circumstances out of which the indebtedness to him arose; That the evidence sufficiently establishes an equitable assignment to the plaintiff.

An assignment of moneys to be collected is valid, and takes effect upon the fund when collected or received.

No particular form of words is necessary to constitute an equitable assignment.

A parol assignment by the board of directors of a business corporation, when acquiesced in and ratified by the corporation, will be enforced by a court of equity.