The learned justice at Trial Term properly submitted the issues of fact to the jury. The judgment entered thereon should be affirmed.
The action was brought by the executrix of a deceased payee of a promissory note against the maker. The latter defended upon the ground that there had been a conditional delivery of the note and that the condition had not been performed. Whether in fact there had been such conditional delivery was the issue submitted to the jury and they found for the defendant.
The only questions, therefore, are (1) whether there was error in the reception of evidence, and (2) if not, whether the verdict is against the weight of the evidence. Taking up first the alleged error in the admission of evidence, should the oral testimony of the defendant as to the agreement of the parties at the time the note was given have been excluded? Since this is a . suit by the payee of the note against the maker, such conditional delivery may be proven by parol evidence (Niblock v. Sprague, 200 N. Y. 390, 393), unless such evidence contradicts the writing. (Jamestown Business College Association v. Allen, 172 N. Y. 291.) In the case at bar, however, no question arises as to an oral contradiction of the note, and hence the fact that the condition is a subsequent one rather than precedent, is immaterial, since, as noted, the parties at the time of the giving of the note also entered into a written agreement reading as follows:
“ Mr. E. F. Simms :
“ Dear Sir.— This acknowledges you have handed me today your three months note for $51,400.22 payable to the order of Joseph L. Rhinock at Empire Trust Co., Hudson Branch, 39th & Broadway, in settlement of account on reverse side this sheet. I will hand you back your note for $30,000.00 mentioned in said account, when same is made which I am to do from proceeds of note of $51,400.22 executed herewith.
“ I understand you have some items of account of moneys spent in connection with matters J. L. Rhinock and yourself have been interested in which you have paid which are to be later settled. On return of J. L. Rhinock will furnish you complete details of within statement.
‘‘ Yours truly,
“ (Signed) FRANK P. RHINOCK.
“ Jan. 28Üi, 1926,”
*320This agreement not only provided that the payee would on his part settle for what he owed — “I understand you have some items of account of moneys spent in connection with matters J. L. Rhinock and yourself have been interested in which you have paid which are to be later settled ”— but also provided that the payee would upon his return “ furnish you complete details of within statement.” This latter has never been done and its meaning coincides with testimony of the defendant that when this blind bill was presented, he gave the note in suit in answer to the bill because the payee wanted to use the note immediately at his bank, but that as between the parties the payee would furnish complete details of the blind accounts, as for 'example, “ for various advances, expenses, etc., $9,169.84.” Such action would be natural between close business associates, where one believed he owed a certain amount but was. uncertain as to the true amount and was perfectly willing to accommodate the other party until the latter itemized the bill. The defendant testified: “ He then asked me to give him the note for his father to use for his accommodation, on the condition that he would furnish me a detailed statement of these charges which he had set up on this paper that he had presented me with. * * * ”
The written agreement between the parties is indefinite in that it states the note is given in payment of an account and also provides for complete details to be furnished by the payee upon his return. Oral evidence was thus permissible to show the whole agreement. As was said in Smathers v. Standard Oil Co. (199 App. Div. 368, 371): “ It is a mere commonplace to reiterate the law that in the case of a written contract whose meaning is clearly ascertainable from its language the court will not look beyond the provisions expressed therein and that no evidence of prior negotiations leading up to its execution is admissible to contradict or vary its plain terms.
“ It is, however, equally well settled that where the language of a contract is ambiguous, indefinite or uncertain in its meaning, extrinsic evidence of the circumstances attending its execution will be permitted to reach the intent of the parties in making it.”
Defendant urges that the court should have construed the written agreement as meaning only that the defendant could counterclaim for any items which he had overpaid. There are two answers to this contention which seem controlling: First, that the written agreement expressly provides that the payee will furnish complete details and moreover it is an unnatural construction to hold that the defendant assumed the burden of disproving blind amounts billed by the plaintiff, rather than the natural *321burden of making the plaintiff show what the items of his bill represented. Second, the written agreement not only expressly provided that defendant could counterclaim for the amounts which he had spent, but also further provided, as noted, that the plaintiff would furnish “ complete details of within statement.” Much emphasis is likewise placed by the appellant upon the fact that the defendant made a payment of $5,000, the appellant urging that this was on account of the note and hence a complete refutation of the defense of a conditional delivery. Whether this payment was really intended to apply against the note or against the unliquidated claim of the plaintiff, presented one of the issues of fact submitted to the jury. The written receipt refers to both the note and “ balance of claim.” The expression “ balance of claim ” is ambiguous. Whether it refers to the balance due on the note, as assumed as the only meaning by the appellant, or refers to an unliquidated claim, details of which were expressly promised by the written agreement concededly entered into by the parties at the time of the delivery of the note, was one of the issues for the jury.
The plaintiff next urges that the telegram of the defendant to the plaintiff admitted complete liability on the defendant’s part, but this was only a piece of evidence bearing on the issues of fact and is as consistent with a request for postponement of the accounting by the plaintiff, at which time the defendant frankly conceded that something would doubtless be due the plaintiff, as it is with an admission of full liability on the note. It thus appears that the plaintiff had an unliquidated claim against the defendant and said claim was not liquidated by the delivery of the note. The plaintiff, however, made no attempt to prove said claim but relied entirely upon the note, as apparently the items are tainted with illegality and as such might be uncollectible. The note, therefore, having been delivered for a special purpose only, namely, for the accommodation of the plaintiff’s testator, pending an adjustment of the accounts between the parties, was not enforcible by the plaintiff free from the condition upon which it was given. Both by the writing and the oral evidence the defendant is entitled to an itemization of the bill before he has to pay the note.
We next come to the question whether the verdict is against the weight of the evidence. What has already been written shows that the verdict is in accordance with the evidence. It is only necessary to add that the only other person who could have contradicted the defendant, namely, the son of the payee, who con*322cededly made the written agreement with the defendant, did not choose to deny the facts as sworn to by the defendant, namely, that the note was delivered upon a condition.
It follows that the judgment and order should be affirmed, with costs.
Dowling, P. J., concurs.
Judgment and order reversed, with costs, and judgment directed in favor of the plaintiff for the balance due on the note in suit, with interest and costs. Settle order on notice.