For the recovery, as for money had and received, of $200 paid by one Ettinger upon a bargain of the defendant to sell the premises No. 3 West One Hundred and Eighteenth street, in the borough of Manhattan, the plaintiff, EttingeFs assignee, alleged a promise by the defendant, as part of the bargain, to give a guaranty that the yearly rental of the premises was $3,700, and that this guaranty the defendant refused to give at the time when the formal contract of purchase and sale was to be executed. Copies of a memorandum dated January 1, 1904, and interchangeably signed were put in by both sides. In it were stated receipt of the $200, designation of the premises, the price, $31,500, including mortgages, outstanding and to be given for $25,500 and total cash to be paid $6,000, payable by instalments. It ended with “ The contract to be made on January. 27th at seven p. m. at 32 Lewis Street. The amount to be paid on contract is $500.” At the place and time fixed the assignor tendered a certified check for $500 and a draft contract embodying the guaranty. Defendant did not take the one and refused to execute the other. Chief am,ong the manifold objections raised by the defendant-appellant and the only ones calling for consideration besides a contention that the judgment is against the weight of evidence are that parol evidence is inadmissible to vary the terms of the memorandum of sale, which is clear and explicit; that evidence is inadmissible either of prior oral agreements to vary the terms or of prior representations which have become merged in a written contract.
Neither of these may prevail. There is no such over*86whelming preponderance of contradiction in the testimony or of probabilities as to call for interference here. Testimony was given without objection upon the direct and upon the cross amply sufficient, if credited, to show that the preliminary memorandum did not express the whole agreement between the parties and also that an agreement similar to that claimed to have been left out of the memorandum was made subsequent to its signing. With this evidence in the case, particularly because the way it came in, the judgment should be affirmed. ,
Judgment reversed and new trial ordered, with costs to appellant to abide event.