# Hutzler v. Richter > Appellate Division of the Supreme Court of the State of New York · January 15, 1897 · 13 A.D. 592 URL: https://www.frixlaw.com/law-library/cases/5181784 ## Case - **Full name:** John Hutzler v. Julius Richter and Pauline Richter, his Wife - **Court:** Appellate Division of the Supreme Court of the State of New York - **Decided:** January 15, 1897 - **Citations:** 13 A.D. 592; 43 N.Y.S. 679 - **Precedential status:** Published - **Opinion:** Dissent by Gbeen - **Judges:** Adams, Gbeen - **Cited by:** 5 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5181784 ## Opinion text Gbeen, J. (dissenting): The original agreement of the parties relating to the insurance upon the property is in writing and contained in the mortgage. It was provided, in and by this instrument, that the mortgagors should keep the buildings erected upon the lands described in the mortgage insured against loss by fire; that they should assign the policy to the mortgagee, his executors, administrators or assigns. This writing, upon inspection, appears to be a complete contract, embracing all the particulars necessary to make a perfect agreement and designed to express the whole arrangement between the parties concerning the insurance. The subject of this contract is the insurance of the buildings upon the premises covered by the mortgage. There is nothing to be explained or added to the same to make it a complete contract. It fully indicates the intention and design of the parties thereto. In such a case the presumption of law arises that the written instrument contains the whole of the agreement, and there can be ho question from the instrument itself but that the *598 writing was intended by the parties as a repository of their agreement concerning this insurance. It is contended by the appellants and, at their request, the court found as follows: “ That it was mutually verbally agreed between the plaintiff and the defendants, at the time the said premises were conveyed, as aforesaid, that the defendants should pay to the plaintiff the sum of four hundred dollars in cash and execute and deliver a bond and mortgage, with a tax, insurance and interest clause for eight hundred dollars, payable as set forth in the complaint; and, as part of the consideration for the buying of said premises by the defendants from the plaintiff, he, th% plaintiff, was to assign and transfer the said policy of insurance to the defendants.” This paroi agreement is inconsistent with the terms of the written agreement, which, as we have seen, is full and complete upon the subject of insurance. By the terms of the written agreement the mortgagors were to procure the insurance on the buildings upon the premises described in the mortgage and assign the same to the mortgagee. By the terms of the paroi agreement, it appears that the claim of the defendants • is,- that the mortgagee should obtain the policy of insurance and that he should assign the same to the mortgagors. In Seitz v. Machine Company ( 141 U. S. 510 ), Fuller, Ch. J., stated the rule as follows : “ Undoubtedly the existence of a separate oral agreement as to any matter on which an original contract is silent and which is not inconsistent with its terms, may be proven by paroi, if, under the circumstances of the particular case, it may properly be inferred that the parties did not intend the written paper to be a complete and final statement of the whole of the transaction between them. * * ' * It must not.be so closely connected with the principal transaction as to form part and- parcel of it. And. when the writing itself, upon its face, is couched in such terms as import a complete legal obligation, toithout any uncertainty as to the object or extent of the engagement, it is conclusively presumed that the whole engagement of the parties and the extent and manner of their undertaking were reduced to writing.” The defendants, as it appears to me, attempted by this oral agreement to add another term or condition to this contract and to render inoperative the terms of the written contract. “ Both at laxy and in equity, one who sets his hand and seal to a xvritten instrument, knowing its contents, canna-t be permitted to set up that *599 he did so in reliance upon some verbal stipulation, made at the time, relating to the same subject and qualifying or varying the instrument which he thus signs.” ( Wilson v. Deen, 74 N. Y. 531 .) The appellants rely upon the case of Thomas v. Scutt ( 127 N. Y. 133 ) as holding that collateral agreements are not included in the established rule excluding paroi evidence tending to vary, modify or extend a written contract, because they are separate, independent and complete contracts, although relating to the same subject; but it was held in that case that they are allowed to be proved by paroi because they were ■ made by paroi, a/nd no part thereof committed to writing.. That rule is not applicable to the question at bar, as it appears from the written instrument itself that the entire contract concerning the insurance was committed to writing; and the purpose of this paroi agreement is to modify and change the contract, so that- the mortgagee, instead of the mortgagors, shall do that which the mortgagors themselves agreed to do, as shown by the written covenant, This agreement appears to be of a complete and comprehensive character, and the verbal agreement, if given force and effect, would conflict with the rule prohibiting paroi evidence to explain, -contradict, vary or change a written instrument. The learned trial court took this view of the- case and decided the same in accordance therewith. His decision is, in my opinion, fully upheld in the following cases: Thomas v. Scutt ( 127 N. Y. 133 ); Case v. Phœnix Bridge Co. (134 id. 78); House v. Walch (144 id. 418); Maher v. Garry ( 3 App. Div. 487 , 496); Lewis v. Yagel ( 77 Hun, 352 ); Van Mater v. Burns (76 id. 3); Emmett v. Penoyer (Id. 556); Woodard v. Foster (64 id. 148); Lamson Consolidated Store Service Co. v. Hartung (46 N. Y. St. Repr. 193); Gerard v. Cowperthwait ( 2 Misc. Rep. 371 ; affd., 143 N. Y. 637 ); Hall v. Beston ( 16 Misc. Rep. 528 ). Lewis v. Seabury ( 74 N. Y. 413 ) is clearly distinguishable. In the last-mentioned case the court said it was ££ very near the line.” I am of the opinion that the judgment herein should be affirmed, with costs. Judgment reversed and a new trial ordered, with costs to abide the event. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5181784. Public record. Not legal advice.