State v. Barbelais (Me.). 881 Thompson, Brosty v. (Conn.). 1 884 Thompson, Jackson v. (Pa.). 421 259 833 148 586 State v. Bass (Me.) State v. Burns (Vt.). State v. Clark (N. J. Sup.). State v. Davis (N. J. Err. & App.) State v. Davison (N. H.). State v. Edminister (Me.).. State v. Harned (N. J. Err. & App.) State v. Intoxicating Liquors (Me.). State v. Langdon (Ñ. H.).. State v. Matlack (Del. Gen. Sess.). State v. May (Conn.). State v. Mickler (N. J. Sup.). State v. Monich (N. J. Err. & App.) .1129 Thompson v. Pennsylvania R. Co. (Pa.).. 323 984 Thompson v. Springfield Water Co. (Pa.).. 521 .1134 Thompson, York County v. (Pa.) 781 ...205, 465 761 Thorp, President, etc., of City of New Ha611 ven v. (Conn.).. 68 Tice v. New Brunswick (N. J. Err. & App.) 108 619 Tolman, In re (Me.). .1102 Tooker v. Tooker (N. J. Ch.). .1134 Toomey v. Bridgeport (Conn.). 78 Towanda Borough, Dalton v. (Pa.)... Town of Canaan v. Enfield Village Fire 952 806 215 547 787 ..1064 725 .... ..1016 Towson Nat. Bank, Councilman v. (Md.).. 358 124 Trall, Van Emburgh v. (N. J. Sup.). 988 Traphagen v. Erie R. Co. (N. J. Err. & 5 App.) 173 .1072 State v. Terry (N. J. Err. & App.) Trescott v. Co-Operative Building Bank 113 (Pa.) 630 State v. Trimble (Md.). ..1026 Trimble, State v. (Md.).. ..1026 State v. Twining (N. J. Err. & App.) 1073, 1135 Tropenas v. Bryson (Pa.). 385 State, Unwen v. (N. J. Sup.).. 163 State v. Upson (Conn.). 2 Trout v. Waynesburg, G. & M. Turnpike Co. (Pa.) 900 State v. Wickenhoefer (Del. Gen. Sess.). State, Windsor v. (Md.).. 273 Trowbridge, White v. (Pa.). 862 288 Turner v. Hall (N. J. Sup.). .1060 State Bank, Commonwealth v. (Pa.).. Vanderveer v. Applegate (N. J. Sup.) 459 White v. Lumiere North American Co. (Vt.) .1121 White v. Trowbridge (Pa.). 862 ....... 936 Van Emburgh v. Trall (N. J. Sup.). Van Houten v. Stevenson (N. J. Ch.).....1058 173 460 Whitehill, Baltimore & O. R. Co. v. (Md.)..1033 231 373 851 394 Wilmington City R. Co., Bullock v. (Del. Vulcanite Paving Co. v. McNichol, two cases (Pa.) Sup.) 242 325 Wilmington City R. Co., Messing v. Super.) Waas, Hyman v. (Conn.).. 354 Wilmington City R. Co., Riedel v. (Del. Wagner, Fennimore v. (N. J. Ch.). 257 Wagner v. Hazle Tp. (Pa.).. 405 Wilmington City R. Co., Wood v. (Del. Wagoner v. Philadelphia (Pa.). 246 Walker, Mershon v. (Pa.). Waller v. Pollitt (Md.). 221 Walsh v. Board of Education of Newark Wingate, Frost v. (N. H.). 19 Witherow, Pennsylvania Coal & Coke Co. Walsh v. Wilkes-Barre (Pa.). 407 v. (Pa.) 535 Walters, Fulton v. (Pa.).. 860 Wolf, Augustine v., six cases (Pa.).. 777 Ware v. McMurray (N. J. Sup.). Warrington's Petition, In re (Del. Gen. (N. H.) 190 Sess.) 251 Wood v. Holah (Conn.). 220 Washington County R. Co., Crabtree v. Wood v. Maine Cent. R. Co. (Me.). 833 (Me.) 842 Washington Oil Co., Green v. (Pa.).. 877 Wood v. Public Service Corp. (N. J. Sup.) 980 Wood v. Wilmington City R. Co. (Del. Su Waterman v. Buckingham (Conn.). 212 per.) 246 Woodbury v. Allan (Pa.). 590 Watkins v. Commonwealth Savings & Loan Ass'n (N. J. Ch.) 751 Woodbury v. Winestine (Conn.) Woodruff v. East Orange (N. J. Ch.) Wooster, Clark v. (Conn.) 221 466 10 Waynesburg, G. & M. Turnpike Co., Trout v. (Pa.).. Wright v. Campbell (N. J. Sup.). ..... 171 900 Weber v. Harrisburg (Pa.) Weeks, Savings Bank v. (Md.).. 295 York County v. Thompson (Pa.) 781 Weidinger, People's Bank & Trust Co. v. (N. J. Sup.).. Young v. Etna Ins. Co. (Me.). 584 179 Weinberg v. Valente (Conn.). 337 Young v. Hamburg-Bremen Fire Ins. Co. (Me.) 584 Wells, Gerting v., two cases (Md.)........298, 433 Wells v. Northeastern Tel. Co. (Me.). Wentworth, Murchie v. (N. H.). Young v. Milan (N. H.).. 16 648 Young v. Niagara Fire Ins. Co. (Me.) 584 507 THE ATLANTIC REPORTER. VOLUME 64. Where the parties to an agreement merge the prior negotiations in a written instrument intending to make that their final understanding, evidence of the prior negotiations is immaterial. [Ed. Note. For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 1756, 1757.] 2. CONTRACTS-TRIAL-QUESTION FOR JURY. Whether parties to a written agreement intended that the writing should embody their entire oral agreement or only a part thereof is a question for the court, determined from the conduct and language of the parties and the surrounding circumstances. 3. EVIDENCE - WRITTEN AGREEMENT - PRIOR ORAL AGREEMENTS-PROOF-ADMISSIBILITY. An owner of a farm and personalty employed a broker to sell the same, and he offered the same for sale for a lump sum. A purchaser agreed to buy the farm and personalty for such sum. Subsequently the owner and purchaser orally agreed that the farm and personalty should be delivered to the purchaser on a specified date, the personalty to be the purchaser's property absolutely, and the real estate to be delivered under a contract of sale. Thereafter the parties executed a written agreement embodying one contract with respect to the real estate. Held to authorize a finding that the written agreement embodied only a part of the oral agreement, rendering parol evidence admissible. Appeal from Court of Common Pleas, Fairfield County; Howard J. Curtis, Judge. Action for conversion by Otto Brosty and wife against William F. Thompson. From a judgment for defendant, plaintiffs appeal. Affirmed. Clitus H. King and Henry Greenstine, for appellants. Edward F. Hall, for appellee. TORRANCE, C. J. The plaintiffs and the defendant entered into an oral agreement relating to the sale by the plaintiffs to the defendant of a farm and of certain personal property used thereon. Subsequently they executed a written contract embodying the terms of the oral agreement as to the sale of the farm, which was silent as to the personal property agreed to be sold under the oral agreement; and the question, upon the present appeal, is whether the prior oral agreement for the sale of the personal prop 64 A.-1 erty is available to the. defendant upon the facts found. These facts may be summarized as follows: The plaintiffs in April, 1905, owned a farm in this state on which was used the personal property described in the complaint, which personal property was less than $300 in value. The plaintiffs placed the farm and said personal property in the hands of a broker to sell, and he offered it for sale to the defendant for the lump sum of $3,600. The defendant and the broker visited the farm, and examined it and said personal property, and the defendant then told the broker that he would buy the farm and the personal property for $3,600, but that all he could pay down was $300. Subsequently, in the early part of April, 1905, the plaintiffs and the defendant agreed to the following terms proposed by the broker: The plaintiffs to deliver the farm and said personal property to the defendant on May 1, 1905, the personal property to be the defendant's absolutely, and the real estate to be delivered to the defendant under a contract of sale the terms of which were subsequently embodied by the broker in a writing called Exhibit A, executed by the parties on April 18, 1905. In said writing the plaintiffs agreed to convey the farm to the defendant by a suitable deed "upon the following conditions," which may be summarized as follows: (1) The defendant was to pay to the plaintiffs upon the execution of the writing $300; (2) he was to pay to them $30 on May 1, 1905, and a like sum on the first day of every month thereafter until the sum of $1,700 should be paid in full; (3) he was to assume and pay the mortgage on the farm, and the interest thereon as it fell due; (4) he was to pay all taxes assessed upon the farm and to keep the buildings insured for a specified amount; and (5) he was to pay interest upon the unpaid portion of the $1,700 at an agreed rate; and finally he was to forfeit all claims to the farm and to all money paid under the agreement, if he failed to make any of the agreed payments. Upon the execution of the writing the defendant paid to the plaintiffs $300 as agreed, also $20 in payment of the interest due upon the mortgage to July 1, 1905. The writing was silent as to the sale or disposition of the personal property. In this entire transaction the defendant did not meet the plaintiffs, but dealt exclusively with the broker. On May 1, 1905, the plaintiffs delivered, and the defendant took, possession of the farm and of the personal property under the foregoing agreement; and shortly thereafter he sold said personal property for $194, notified the broker that he abandoned the contract, and made no further payments thereon. Upon the trial the plaintiffs admitted that the personal property was part of the subjectmatter of the oral agreement between the parties, but claimed that by that agreement the title to the personal property was to remain in the plaintiffs until the title to the farm passed to the defendant. The evidence of the existence and terms of the prior oral agreement for the purchase and sale of the farm and the personal property, came in without objection apparently; but after it was in, the plaintiffs claimed that "the court should disregard that evidence, and treat the written agreement as the entire contract between the parties." This claim the court overruled, and from all the evidence in the case, found the facts aforesaid, and that the parties did not intend to embody the entire oral agreement in the written one. The evidence is not before us, but upon the record as it stands we must assume that it warranted the court in finding as it has. The plaintiffs claim that the existence of the written agreement rendered the prior oral agreement between the parties, for the purchase and sale of the personal property, of no avail to the defendant. This claim is based upon the so-called "parol evidence rule," that where parties merge all prior negotiations and agreements in a writing, intending to make that the repository of their final understanding, evidence of such prior negotiations and agreements will be rejected as immaterial. The rule itself is firmly es tablished (Galpin v. Atwater, 29 Conn. 93–97; Averill v. Sawyer, 62 Conn. 560, 568, 27 Atl. 73; Caulfield v. Hermann, 64 Conn. 325, 327, 30 Atl. 52), and the only question is whether it is applicable in this case. We think it is not. Whether the parties intended the writing to embody their entire oral agreement or only a part of it, was a question for the trial court, to be determined from the conduct and language of the parties and the surrounding circumstances; and that court has found that the parties had no such intent, and there is nothing in the record to show that the court, in reaching that conclusion, erred either in law or in logic. 4 Wigmore on Ev. § 2430. Where the parties do not intend to embody their entire oral agreement in the writing, the rule invoked by the plaintiffs does not apply. Collins v. Tillou's Adm'r, 26 Conn. 368, 68 Am. Dec. 398; Clarke v. Tappin, 32 Conn. 56; Hall v. Solomon, 61 Conn. 482, 23 Atl. 876, 29 Am. St. Rep. 218; Averill v. Sawyer, 62 Conn. 560, 27 Atl. 73; Chapin v. Dobson, 78 N. Y. 74, 34 Am. Rep. 512. That rule does not apply in this case. There is no error. The other Judges concurred. (79 Conn. 154) STATE ex rel. METROPOLITAN LIFE INS. CO. v. UPSON, Insurance Com'r. (Supreme Court of Errors of Connecticut. June 8, 1906.) 1. MANDAMUS-MATTERS OF DISCRETION. Mandamus will lie to compel the insurance commissioner to do an act in respect to which he has no discretion, but will not lie to compel the performance of a duty requiring the exercise of his judgment. [Ed. Note. For cases in point, see vol. 33, Cent. Dig. Mandamus, § 134.] 2. SAME. The resolution of the Legislature, adopted in 1905, providing for the refunding to New York insurance companies taxes imposed pursuant to Gen. St. 1902, §§ 2450, 3606, by reason of similar taxes being exacted from Connecticut companies doing business in New York under Laws N. Y. 1901. p. 297, c. 118, of such sums as the insurance commissioner "shall determine should be so refunded under the provisions of existing laws," adopted after the New York courts had determined that the New York laws of 1901 imposed a franchise tax and that premiums on contracts entered into before the law went into effect were not subject to the tax, and while the only means enabling Connecticut companies overpaying on New York business to recover the overpayment was that given by Laws N. Y. 1896, p. 864, c. 908, § 195, imposes on the insurance commissioner the exercise of his judgment in determining the amount to be refunded to New York companies in view of the policy of the state imposing the same tax on insurance companies transacting business in the state as is imposed by such states on the Connecticut companies transacting business in such states, and mandamus does not lie to compel him to determine what amount shall be refunded, though he wrongfully construes the New York law of 1896 as a restriction on insurance companies, so as to make it a condition precedent to the refunding of any taxes that an application therefor must be made within one year from the receipt of each annual tax bill. Appeal from Superior Court, Hartford County; Silas A. Robinson, Judge. Application for a writ of mandamus by the state, by Arthur F. Eggleston, state's attorney, on the relation of the Metropolitan Insurance Company, against Theron Upson, insurance commissioner, to compel respondent to determine and certify to the Comptroller that certain sums paid by the relator as taxes on premiums received from business in the state should be refunded. From a judgment sustaining a motion to quash the alternative writ, the applicant and relator appeal. Affirmed. John K. Beach and Harry G. Day, for appellants. William F. Henney and William A. King, Atty. Gen., for appellee. HALL, J. The following facts are alleged in the application and in the alternative writ of mandamus: The Metropolitan Life In. |