In 1893 one Rohrs was erecting buildings on certain lots owned by him in the city of New York, pursuant to a building loan contract between him and the' defendant. The plaintiff was to furnish labor and materials on the building for Rohrs. The building loan agreement provided that no advance or payment should be required while there were any mechanics’ liens or judgments affecting the bouses, and that the last payment should be due when the buildings should be inclosed, roofs on and tinned, fronts up and cornices set, skylights and copings on and the leaders up, and connections made with the sewer.
*265The plaintiff alleges that Rohr? offered to secure the payment of $500 which was due him by executing and delivering an order, which he subsequently did, in the following form:
“November 16¿A, 1893.
“ J. Allen Townsend :
“ Pay to Matthew O. Kervan five hundred dollars on °jc when roof is on and cornice up, skylights up and leaders connected with sewer on the two houses * * * which you. are making the loans on, and deducted out of my enclosure payments.
“FREDERICK ROHRS.”
The plaintiff further alleges that thereafter the order was presented and delivered to the defendant by him and duly accepted, with full knowledge that certain mechanics’ liens had been filed, “ and thereupon the defendant duly promised and agreed with the plaintiff that if the plaintiff would proceed with the performance of the last-mentioned agreement the defendant would pay to the plaintiff the said sum of five hundred dollars out of moneys then in his hands, and then earned or owing under the terms of said agreement between the defendant and said Rohrs, and notwithstanding the existence or filing of said mechanics’ liens, and notwithstanding the entry or filing of any liens or judgments thereafter against said Rohrs or said houses; ” and that, relying upon said order or assignment and the acceptance thereof by the defendant, and the last-mentioned promise and agreement of the defendant, the plaintiff put the roof on said houses and the cornices and skylights and leaders up, and the leaders were connected with the sewers of said two houses, and that the said Frederick Rohrs had substantially completed all work and substantially furnished all materials necessary to entitle him or his assignees to the said inclosure payments.
The defendant denied that he had entered into any agreement other than that contained in the written acceptance, and alleged that the work was not substantially completed, and that the connection was not made between the leaders and the sewer. These issues were litigated upon the trial and resulted in a verdict for the plaintiff, and it is from the judgment entered thereon that this appeal is taken.
*266In the. chárge of the learned judge, to which no .exception was taken, the plaintiff’s right to recover was placed upon the ground that he was bound' to show that the defendant waived the-conditions with -respect to the existence of mechanics’ liens which would be sufficient to defeat the- right of Rohrs to the in closure payment. As therein said: “ This acceptance (referring to the written order) is one of those which,, on the face -of it, would become due. and payable only upon the- completion of work, entitling the builder to .the * • * * ‘ enclosure payment.’ In order for that, to become dye, it was necessary for all liens- to be extinguished and all the work dime that was required to be done up .to that time. * * * ■ The plaintiff’s sole right to recover in this Case rests upon- whether or not there was a waiver of this performance of this contract on the part of the defendant Townsend.”- ■
As there was no request to go to the jury upon the other issue as to performance, both sides having agreed to the view taken by the learned trial judge, that the question of waiver was the only one to be determined, and there being conflicting evidence upon this, we would not be justified in interfering with the verdict if based upon competent evidence. As thus regarded, the case,, in many respects, is similar to that of Stone v. Cohen (4 App.. Div. 175), an examination of which will show -that the facts here proven bring it directly within the principles of ■ that case ; and if there were nothing more we' might well rest our affirmance upon that authority. It is insisted, however, that the distinction between the two cases rests in- the fact that there a waiver was proven by conversations- occurring aftei the acceptance of the order, while in the case at bar the .conversations-relating to the waiver were prior to or contemporaneous with the acceptance of the written order, and, therefore, were incompetent under the rule of law that parol evidence is inadmissible to' contradict the terms of the written acceptance. This distinction does not appear in the opinion as reported, because the agreement, which-was held to be sufficient to establish' the waiver, was- proved, by statements which,in the opinion, were said to have been made at the time of the acceptance of the order, and, that being so, the case is precisely like the case at bar and-should control it. It is true, however that an examination of the record in Stone v. Cohen (supra) does disclose the fact that the testimony to establish the waiver was of statements made *267• after the written acceptance. But this does not in any way, as we think, affect the principle, although it may bear upon the weight to be given to-the case of Stone v. Cohen (supra). But, upon well-settled principles, we are clearly of the opinion that the evidence .given in this case to establish the waiver was competent. It must be remembered that the plaintiff’s cause of action here was not solely upon the-written acceptance, but was upon the agreement, which it was said accompanied the acceptance, to the effect that if the plaintiff would proceed with the work the defendant would pay him the sum of $500 out of the money to be earned and owing under the terms-of the agreement with Rohrs, and notwithstanding the existence or filing of any mechanic’s lien against said houses. This was just as much a part of the agreement, as alleged in the complaint, as was the acceptance, and it comes within the thoroughly-settled rule that where the written contract is only a part of an entire agreement, that which stands solely in parol may also be proved, although th.e effect may be to vary or enlarge that portion of the contract which is contained in the written contract. (Chapin v. Dobson, 78 N. Y. 74.).
But in this case there is no necessity of resorting to that rule. The written contract between the parties consisted of the order and the acceptance and of nothing else. The order directed the payment to the plaintiff of $500 “ when roof is on and cornice up, skylights up and leaders connected with sewer.” The acceptance was “to be paid when enclosure payment is due Frederick Rohrs.” • This acceptance was clearly ambiguous, and, to be understood, it was necessary that extrinsic evidence should be given to show when the inclosure payment was due. As between Rohrs and the defendant, the time when that payment was due was established by the written contract which they had entered into. But that was a contract between them only, and one with which the plaintiff had nothing whatever to do. While it was evidence so far as lie was concerned upon the question when the in closure money was due, there was no rule of law which bound or concluded .him in any. way by the contents of the paper in which was contained the contract between Rohrs and the defendant. In his effort to show when the inclosure money was due, he was at liberty to give whatever - evidence he-might be possessed of on the subject, not only the writ- *268- ten contract between the two parties other than himself, but whatever was said to him by the defendant by way of inducing him to believe that the in closure money was due at some other time or under some other circumstances than those stated in the contract between the defendant and Rohrs. The rule that parol evidence cannot be given to contradict or vary a written agreement is limited to the parties' actually contracting with each other by the agreement, and it cannot'be invoked against one who is a stranger to the contract. (1 Greenl, Ev. § 279.) So far as the contract .between Rohrs and the defendant was concerned, the plaintiff was a stranger to it. He was not bound by any of its provisions. The contract, which he made was solely with the defendant, and it is to be construed in the light of what was said between the defendant and himself at the time that it was entered into so far as facts and circumstances may be given to enable the court to construe it. The plaintiff here did not sue alone, as we have pointed out by the allegations of his complaint,' upon the written acceptance, but alleged the facts showing an agreement in connection with the written acceptance, under which the defendant agreed to pay the plaintiff if he would proceed with. the work, whether liens were or were not filed, and that, in reliance thereon, he proceeded and substantially completed the work. Moreover the order was signed with knowledge on the part of both the plaintiff, and the defendant of the existence of mechanics’ liens, and there is force in- the suggestion that there was an implied waiver of that clause, and that the words inserted in the acceptance, “ when enclosure payment is due Frederick Rohrs,” being ambiguous,- are to be read in the light of the conditions then actually existing, and that as thus understood they relate only to the performance of the work on the buildings, and not to the technical terms of the written contract. In other words, the inclosure payment would’ be due when the work was performed, and would be payable provided no liens had been filed, and the signing of the acceptance by the defendant with knowledge of - the existence of liens is. to be considered with reference to the then conditions.
Apart, however, from this, we prefer to place our affirmance upon the fact appearing that the defendant promised and agreed to pay anyway, without regard to any incumbrances on the property, ■ and that, relying upon such promise, the plaintiff went on and substan*269tially completed his work. This was a contract which the defendant was competent to make and. rested on sufficient consideration. It was not embraced in any writing, and whether it be regarded as an independent collateral agreement or a part of the contract not reduced to writing, evidence of it was properly admitted on the trial. (Brady v. Cassidy, 145 N. Y. 171.) .
As there was no other question of substance presented, we think, for the.reasons given, that the judgment -should be affirmed, with costs.
Rumsey, J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.