Phillips v. Louis Koppelon & K. L. & G. Realty Co. 96 N.J.L. 550

E. EVERETT PHILLIPS, TRADING AS HARRISON SUPPLY COMPANY, RESPONDENT, v. LOUIS KOPPELON AND K. L. & G. REALTY COMPANY, A CORPORATION, APPELLANTS.

Argued June 24, 1921

Decided October 14, 1921.

On appeal from the Supreme Court, in which the following per curiam was filed:

“This is an action 'by the plaintiff against a' builder and owner on a stop-notice. The only defence is that the owner was not indebted to the extent of the notice, and if he was, then the directed verdict for plaintiff against both defendants is proper. The facts are that the builder contracted with the owner for the erection of the building; that the contract was filed; that the plaintiff made a contract September 18th, 1919, to furnish defendant certain material, amount not stated, at agreed prices, to be paid for on the first of each month. Plaintiff furnished the materials, and defendant defaulted October 1st, 1919, the agreed pay day, when plaintiff refused further deliveries, and on October 7th, 1919, a written contract was made between them as follows: ‘Abrogating all former conversations and agreements, we will deliver to Mr. Ivoppelon’s job, Arlington and Pratt avenues, sand, cement and brick as per prices already sold for. All to. the extent of $500 (five hundred dollars), provided, however, Mr. Koppelon first makes payment in full of the present indebtedness as per bills rendered. Said further credit to be paid in one month’s time.’ The prior indebtedness was paid and plaintiff thereupon delivered materials to the extent of $993.26. At the trial the defendant offered to prove that the second contract was not intended to be a contract, which proof the trial court, refused, and directed a verdict for plaintiff, and defendant appeals. The point argued by appellant is that oral testimony is admissible to show that a written contract was not intended by the parties to ’be a contract, but *551for a purpose entirely different from that expressed. That is not the ride in¡ this state. This contract is not ambiguous, and was acted on by both parties.. It was made by its terms a settlement of all prior disputes about the subject-matter, in consideration of which the plaintiff was to extend a monthly credit to the defendant, who received the material and used it, Which he does not. deny, but desires, to offer proof that the contract was not what it expressly says it was. The direction was correct and the judgment will be affirmed, with costs/'

For the appellants, Kanter & Kanter.

For the defendants, Henry II. Fryling.