This case was before us upon a former appeal from a judgment holding that the complaint did not state a cause of action. The Hocking Valley Railway Company owned about 2,500 gondola coal cars. They sold to the Central Locomotive and Car Works 2,100 of said cars. They were left with about 350 or 400 cars. Thereafter they sold to one Wardwell 300 of these gondola cars which they had left after the sale to the Central Locomotive and Car Works. Under the complaint as it now stands,-there was a dispute between the Hocking Valley Railway Company and Wardwell as to when the 300 cars were to be delivered, the Hocldng Valley Railway Company refusing to deliver them at the time claimed by Wardwell to be specified in the contract, and Wardwell brought an action against the Hocking Valley Railway Company in Illinois to recover damages for a breach of the contract. That action was brought upon the 2d day of April, 1913. Upon the 3d day of April, 1913, plaintiff made a contract to sell these cars to the Central Locomotive and Car Works and a bond was executed by the defendants’ testator, indemnifying the Hocking Valley Railway Company from all damages, costs and expenses in any action so claimed by Wardwell against them for failure to deliver these 300
“ The condition of the foregoing obligation is such that whereas The Hocking Valley Railway Company, through its President, sold to the Central Locomotive & Car Works all of a certain series of cars, known as thirty-ton coal cars, numbered 1 to 1,500; 1,900 to 2,499 and 14,000 to 15,499, and
“ Whereas, through mistake, three hundred of said cars were subsequently sold to H. F. Wardwell, and
“ Whereas, if The Hocking Valley Railway Company will carry out its contract with the Central Locomotive & Car Works, the said Central Locomotive & Car Works is willing to enter into a bond, with security, to indemnify and save harmless the Hocking Valley Railway Company from any claim, suit or damage that made be made or claimed by H. F. Wardwell.”
The obligation of the bond is then assumed. The facts hereinbefore stated in this opinion are alleged in the complaint in the action, and after the commencement of the suit by Wardwell these cars were in fact sold to the Central Locomotive and Car Works, and the consideration for the giving of the indemnity bond is stated to be the sale of the said cars to said Central Locomotive and Car Works.
Upon the allegations of the complaint, it seems to me that a cause of action is stated. After a controversy between the Hocking Valley Railway Company and Wardwell as to the sale by them and their refusal to deliver as demanded by Wardwell, and his bringing of an action for damages against the Hocking Valley Railway Company for a breach of contract, the Hocking Valley Railway Company had the right to sell these cars and could give title thereto to any one purchasing the same. In the amended complaint the consideration of this bond is stated to be the sale of these cars to the Central Locomotive and Car Works. That constitutes a sufficient consideration for any obligation assumed, either by the Central Locomotive and Car Works, or by Barbour, as surety therefor.
The claim of the defendants, however, is that upon the recital in the bond this obligation of the Hocking Valley Railway Company to sell and deliver all of these cars to the Central Locomotive and Car Works was assumed long before
The complaint in this case differs materially from the complaint upon the former appeal. Upon the former appeal the complaint as it then stood recited specifically that the consideration of the bond of indemnity was the sale of these cars to the Central Locomotive and Car Works after the sale to Wardwell, “ and the refusal of the plaintiff to deliver to said Henry F. Wardwell any of said three hundred of its gondola cars which it was obligated to deliver to said Henry F. Wardwell.” That we held rendered the bond invalid because it was a consideration which was against public policy. Under that allegation the bond was given to induce the Hocking Valley Railway Company to break its contract with Wardwell. Under the present complaint, however, it is stated that the consideration was the sale to the defendants of these cars, and it was further alleged that the cars were not sold to the Central Locomotive and Car Works until after the contract had been breached between the Hocking Valley Railway Company and Wardwell and Wardwell had recognized its breach by bringing an action for damages therefor. The complaint, therefore, now states a cause of action, if the plaintiff may show a consideration at variance with the consideration stated in the bond. That the consideration in a written contract may be explained or modified where the purpose of oral testimony offered therefor is to show the validity of the obligation assumed, is held in the cases cited in the opinion of the court when this action was here upon the former appeal (190 App. Div. 341). The appellants here
In 24 Ruling Case Law (at p. 696) it is said: “ The amount and kind of consideration acknowledged in a sealed instrument is presumed to be the consideration agreed upon; but it may be shown by parol evidence that a different kind or amount of consideration had been agreed upon.”
In 4 Wigmore on Evidence (§ 2433), quoted by appellants in their brief, it is said: “ By an application of principle similar to the foregoing, a recital of consideration received, when it occurs in a deed of grant, is usually intended merely as a written acknowledgment of the distinct act of payment, being there inserted for convenience. Hence it is not an embodiment of an act per se written, and may be disputed like any other admission. But the statement of a consideration may, on the other hand, sometimes be itself an operative part of a contractual act,— as when in the same writing the parties set out their mutual promises as considerations for each other; here the word ' consideration ’ signifies a term of the contract, and hence the writing alone can be examined.”
The claim of the appellants upon this argument would seem to be that the recital as to the promise to War dwell constitutes a contractual element by which the parties were bound within the citation from Wigmore. But the contractual element there referred to is simply a contractual element between the parties to the instrument. Whether or not the plaintiff had agreed to sell to the Central Locomotive and Car Works all of its cars prior to this sale to Wardwell was, as far as this contract is concerned, merely the recital of a fact and the recital is not so to be changed for the purpose of impeaching the obligation but for the purpose of supporting the obligation.
In McCrea v. Purmort (16 Wend. 460) the law is thus stated: “ The consideration clause in a deed, that is, the clause acknowledging the receipt of a certain sum of money as the consideration of the conveyance or transfer, is open to explanation by parol proof. Thus where the consideration in a deed conveying lands was expressed to be money paid, it was held,
We believe with the Special Term that they are sufficient, and the order should, therefore, be affirmed, with ten dollars costs and disbursements.
Clarke, P. J., Laughlin and Merrell, JJ., concur;. Greenbaum, J., dissents.