The critical issue in the present case is whether or not there is any ambiguity in regard to provisions of these contracts as set forth in article XIII thereof. The issue is one of law and, unless ambiguity appears from the face of the document, parol evidence as to intent is inadmissible.
The plaintiffs did not seek any remedy based upon the theory of mistake, either mutual or unilateral. Any and all services for which plaintiffs seek recovery are admittedly encompassed within the contracts at issue. Under such circumstances the parol evidence may not be considered as to the intention of the parties in regard to the compensation to be paid to plaintiffs unless there is some ambiguity.
These contracts provide in articles III and XIII for "[p]ayment for services” and "[c]ompensation of [architect”. Article III had added to its caption a reference to article XII. Article *54XIII "Compensation of Architect” contains in part the following language: "Notwithstanding any other provisions of this Agreement, the total compensation and reimbursable travel and telephone expenses shall not exceed the amount that the Architect would have received as a 'Total Fee’ under Subdivisions 1, 2 and 3 of Section A of Article III had such provisions been applicable, plus a sum equal to * * * [lVz or 2]% of the construction cost of the Project.”
Articles XII and XIII are typewritten additions to the printed agreement.
Upon its face that language is not ambiguous and, to the contrary, is explicit. Nevertheless, it is contended that the language is ambiguous when the contracts are considered in their entirety. In considering the plain meaning of these contracts, it is noted that they were approved as written by the State Comptroller pursuant to section 112 of the State Finance Law.
The entire article XIII is quoted in the majority opinion and even a cursory reading of it reveals no conflict in its provisions. The architect was to receive as a "fee” his direct labor costs plus 150% thereof (typewritten change from 100% to 150%). He was also to be reimbursed for direct labor and material costs as well as travel and telephone expense. It does not appear to be suggested that there is any ambiguity as to article XIII being "total” compensation or fee and entirely controlling article III as to the total fee to be paid in the absence of applying the final "upset” sentence. Finally, the agreement does not have any inconsistencies as to the legal conclusion that article XIII was intended to control article III as to the total compensation in the absence of the upset provision.
The "notwithstanding” sentence or upset provision of article XIII is not, upon its face, inconsistent with any other provisions of article XIII or the remainder of the contract. It limited compensation to the total of the computation under part "A” of article III plus a percentage of the construction cost of the project. Under part "A” of article III the architect would not be reimbursed for any labor or other direct costs, but that was not unusual as regards a fee. While it would have been unusual not to provide for extra compensation for traveling and telephone expenses as well as other items provided in part "C” of article III, article XIII in its upset provision expressly adds an additional factor of a percentage *55of the construction cost of the project. It is apparent that the further compensation was for all services and "cost plus” would have been intrinsically inconsistent with the limitation. Under such circumstances, the added typewritten provision to this otherwise printed form should prevail (see Heyn v New York Life Ins. Co., 192 NY 1, 6; National Bank of Westchester v Dogwood Constr. Corp., 47 AD2d 848, 849; Trade Bank & Trust Co. v Goldberg, 38 AD2d 405; Feldman v Fiat Estates, 25 AD2d 750, 751; Laurino v Hewman, 10 AD2d 725).
In any event, to find the limitation ambiguous is to nullify plain language when there is nothing about the contract which, upon its face, would appear misleading.
The judgment should be reversed, and the complaint dismissed.
Sweeney and Larkin, JJ., concur with Mahoney, P. J.; Kane and Herlihy, JJ., dissent and vote to reverse in an opinion by Herlihy, J.
Judgment modified, on the facts, by reducing the award of damages on the first cause of action from $199,369.44 with interest to $150,369.44, with interest and by reducing the total award accordingly, and, as so modified, affirmed without costs.