Lossing v. Cushman

12 Citing cases

  1. United States ex rel. Susi Contracting Co. v. Zara Contracting Co.

    146 F.2d 606 (2d Cir. 1944)   Cited 44 times
    In United States for Use of Susi Contracting Co. v. Zara Contracting Co., 146 F.2d 606 (2d Cir. 1944), a Miller Act action, the court was faced with a situation similar to that involved here — the prime contractor had unjustifiably breached a subcontract after partial performance by the subcontractor.

    Both Zara and the Government officials were thoroughly apprised of the situation; in fact Zara made it the grounds of a claim to the United States for additional compensation and received a substantial additional allowance. Even without this contract provision no termination would have been justified under the circumstances, cf. Lossing v. Cushman, 123 App. Div. 693, 108 N.Y.S. 368, reversed on other grounds 195 N.Y. 386, 88 N.E. 649; Gutman v. Crouch, 57 Hun 586, 10 N.Y.S. 275; with the provision it would have been clearly inequitable so to hold. There is no reason to limit the natural meaning of "unforeseeable causes" because of another provision of the contract in a different article prohibiting claims by the subcontractor for unknown latent or subsurface conditions (note 2, infra).

  2. Milner Land Co. v. Houston

    142 So. 410 (Ala. 1932)   Cited 3 times

    eed which is upon its face an absolute grant is not subject to have reservations or limitations ingrafted thereon by parol or extrinsic evidence of intentions, understandings, or agreements contradictory to or at variance with its clear language. Vizard v. Robinson, 181 Ala. 349, 61 So. 959; Burroughs v. Pate, 166 Ala. 223, 51 So. 978; Winchester v. Winchester, 175 Cal. 391, 165 P. 965: Read v. Gould, 139 Ga. 499, 77 S.E. 642; Miller v. Miller, 91 Kan. 1, 136 P. 953; Taylor v. Kennedy, 228 Mass. 390, 117 N.E. 901; Paris Grocer Co. v. Burks, 101 Tex. 106, 105 S.W. 174; Morris v. Robinson, 80 Ala. 291; Baskett L. M. Co. v. Gravlee, 15 Ala. App. 359, 73 So. 291; Cox v. O'Neal, 142 Ala. 314, 37 So. 674; Davis v. Carlisle (C.C.A.) 142 F. 106; Blakely Oil F. Co. v. Proctor Gamble Co., 134 Ga. 139, 67 S.E. 389; Autem v. Mayer Coal Co., 98 Kan. 379, 158 P. 13; Eustis M. Co. v. Beer, Sondheimer Co. (D.C.) 239 F. 976; Rochester T. Works v. Mitchell Woodbury Co., 215 Mass. 194, 102 N.E. 438; Lossing v. Cushman, 195 N.Y. 386, 88 N.E. 649; Louisville N. R. Co. v. Higginbotham, 153 Ala. 334, 44 So. 872; Culver v. Wilkinson, 145 U.S. 205, 12 S.Ct. 832, 36 L.Ed. 676; Dexter v. Ohlander, 93 Ala. 441, 9 So. 361; Pierce v. Tidwell, 81 Ala. 299, 2 So. 15; Bethea v. McCullough, 195 Ala. 480, 70 So. 680; Brassell v. Fisk, 153 Ala. 558, 45 So. 70; Brown v. Wiley, 20 How. 442, 15 L.Ed. 965; U.S. v. Fidelity Deposit Co. (C.C.A.) 152 F. 596. If parties have clearly stated their purpose in the instrument itself, no extrinsic evidence will be received to vary or contradict it. Noble v. Frickes, 230 Ill. 594, 82 N.E. 950, 13 L.R.A. (N.S.) 1203, 12 Ann. Cas. 282; Doolittle v. J. C. Murray Co., 134 Iowa, 536, 111 N.W. 999; Diamant v. Chestnut, 204 Mich. 237, 169 N.W. 927; Bockian v. United Candy Co., 91 N.J. Law, 314, 102 A. 393; Clark v. Delaware, L. W. R. Co, 138 N.C. 25, 50 S.E. 446. Where the deed contains reservations, they cannot be defeated by parol evidence. Hornbuckle v. Stafford, 111 U.S. 389, 4 S.Ct. 515, 28 L.Ed. 468; Ci

  3. Ayers v. Palatine Ins. Co.

    137 N.E. 608 (N.Y. 1922)   Cited 5 times

    "We are restricted, therefore, to the interpretation of the language used, and proof of intention is only admissible when, in cases of ambiguity, proof of intention enables us to discover what the language means." (Wharton on Evidence, sec. 937, 946; Trustees of Southampton v. Jessup, 173 N.Y. 84; House v. Walch, 144 N.Y. 418; Lossing v. Cushman, 195 N.Y. 386.) Here there was no dispute as to the facts.

  4. Allen v. City of Oneida

    104 N.E. 920 (N.Y. 1914)   Cited 5 times
    In Allen v. City of Oneida (210 N.Y. 496, 501) it was provided that the payment of the final amount due should release the city from any and all claims under the contract.

    00 per acre; that is, grubbing, clearing and cleaning 42 acres as defined under the head of "Clearing" hereinbefore referred to. The contract on its face being clear and unambiguous, parol evidence to contradict or vary its terms and to show an alleged agreement or statement of the board of public works at the time that proposals were made for the doing of said work was inadmissible. ( Lossing v. Cushman, 195 N.Y. 386. ) This claim on the part of plaintiffs does not come within the cases cited and relied upon by counsel for respondent, which hold that where a city requires a contractor to do some work, claiming that the same is covered by the contract, and the question whether the work required is embraced within the contract is disputable and its determination surrounded by doubt, the contractor may comply with the demand under protest, and subsequently recover damages measured by the value of the extra work or materials required of him.

  5. Loomis v. N.Y.C. H.R.R.R. Co.

    96 N.E. 748 (N.Y. 1911)   Cited 21 times
    In Loomis v. New York Central H.R.R.R. Co. (203 N.Y. 359) the court said: "Thus the question presented is whether a written contract to transport goods from one place to another, duly signed by both carrier and shipper, but silent as to the route, can be varied by evidence of previous parol instructions to ship by a particular route.

    Thus we have recently held, as required by previous decisions on the subject for time out of mind, that "where a written contract is without ambiguity, clear and complete on its face, with no doubt as to the meaning of any word, no evidence that any term is technical or local, nothing to open the door to proof of extrinsic facts, no effort at reformation either by the pleadings or proof, and the rulings, admitting statements of what was said between the parties before the contract was signed, are not covered by any exception to the general principle of exclusion, parol evidence cannot be received to vary or contradict its terms." ( Lossing v. Cushman, 195 N.Y. 386.) The respondents, however, insist that the writing in question does not appear on its face to be a complete contract; that the parol evidence was consistent therewith and not contradictory thereof, and hence, that the rule opens to admit such evidence in order to complete an entire contract of which the writing is only a part.

  6. Pryor v. City of Buffalo

    197 N.Y. 123 (N.Y. 1909)   Cited 30 times
    In Pryor v City of Buffalo (197 N.Y. 123, 136), the Court of Appeals held that even with the grantee's knowledge of a railroad easement, his right to object to the unmarketability of title was not defeated. The reasoning of the Pryor decision was adopted by this court in Dinnean v. Liebler (8 A.D.2d 920, affd 8 N.Y.2d 759).

    It is insisted by the learned counsel for the plaintiffs, as already stated, that the evidence of all these so-called negotiations, after the delivery of the deed by the city to the plaintiffs on the 25th day of June, 1906, is a violation of the old and well-settled principle of law recently restated by this court. In Lossing v. Cushman ( 195 N.Y. 386), VANN, J., states at page 390 as follows: "The evidence objected to did not tend to dispel a doubt by an explanation consistent with the terms of the written contract. It tended to make a new contract. Witnesses were permitted to swear out of the contract something which the parties had written in and to swear into the contract something which the parties had not written in. This, if sustained, would leave no contract safe, and the most prudent person could not erect a barrier against misunderstanding, forgetfulness or perjury.

  7. Waters, Inc. v. March

    240 App. Div. 120 (N.Y. App. Div. 1934)   Cited 9 times
    In William H. Waters, Inc. v. March, 240 App. Div. 120, 269 N.Y.S. 420 (1st Dep't 1934), upon which MCP relies, written contracts appeared upon inspection to be in all respects complete.

    The court should, therefore, have limited the proof on this point to the meaning to be attributed to these provisions of the written contracts. ( Lossing v. Cushman, 195 N.Y. 386, at p. 389.) This was not done. The plaintiff's president was permitted to testify that the defendants had verbally warranted that the No. 1 and the No. 2 skins delivered under the contracts would yield, respectively, four pounds and two and two-thirds pounds of fur to each one hundred skins.

  8. National Bank of Rochester v. Erion-Haines Realty

    224 A.D. 642 (N.Y. App. Div. 1928)

    Even if the proof introduced by defendants is sufficient to establish the claimed oral agreement preceding or attending the making and delivery of the bond and mortgage in February, 1914 — to the effect that the instruments in question, in the possession of the Bank of Commerce, were held as collateral to the note in suit and its predecessors and to no other notes or indebtedness — receipt of such proof in evidence was error, in that it tended to vary the terms of a written instrument cotemporaneously or subsequently executed. ( Lossing v. Cushman, 195 N.Y. 386; Lese v. Lamprecht, 196 id. 32.) For Haines was not a stranger to the bond and mortgage contract of the Erions.

  9. New Amsterdam Casualty Co. v. Mobinco B. Co., Inc.

    219 App. Div. 486 (N.Y. App. Div. 1927)   Cited 11 times

    But there were no opposing affidavits, and the question of the sufficiency of the motion papers is not raised, so we will deem them sufficient. The theory upon which plaintiff is proceeding is not entirely clear; but we think there were sufficient allegations contained in the complaint so that we may say the plaintiff is not attempting to change the terms of a written sealed instrument by showing either prior negotiations or an intent different from that stated therein ( Lossing v. Cushman, 195 N.Y. 386; Allen v. City of Oneida, 210 id. 496) or subsequent modification. ( Crowley v. Lewis, 239 N.Y. 264; Cammack v. Slattery Bro., Inc., 241 id. 39.) If it can be established that the individual defendants became bound by the conditions attached to the execution and delivery of the contract, or that there was an original oral agreement of guaranty, the plaintiff would be entitled to recover. The order should be affirmed, with ten dollars costs and disbursements.

  10. Seeley v. Osborne

    161 App. Div. 844 (N.Y. App. Div. 1914)   Cited 1 times

    The parol evidence must be consistent with and not contradictory of the written instrument." (See, also, Lossing v. Cushman, 195 N.Y. 386.) In Studwell v. Bush Company ( 206 N.Y. 416) the question was again presented to the Court of Appeals and the case of Thomas v. Scutt ( supra) was cited and approved.