UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
: January 19, 1945.
SCOTT ET AL.
On petition for rehearing.
The Court of Appeals in Higgs v. De Maziroff, 263 N.Y. 473, 189 N.E. 555, 92 A.L.R. 807, decided - though obiter - that when a party without objection allows oral testimony to be taken as to the terms of a contract which has been reduced to writing, he surrenders - "waives" - the position that the writing is the final memorial of the parties' intentions. The court declared that, although the doctrine which usually passes under the name of the "parol evidence rule" is one of substantive law, i.e., what the actual contract was; by accepting the admission of oral evidence without protest, a party allows the issue to be changed and that the terms of the contract are then to be determined as though the writing had not been made the final memorial. If need were, we might wish to satisfy ourselves that the doctrine so laid down was not a part of the procedure for regulating the conduct of the trial, in which event it would not conclude us; but it is not necessary in the case at bar to decide the point. While the defendant was reading a part of his examination before trial which concerned talks that had preceded the letter of September 18th, the plaintiff himself objected that it was "against the parol evidence rule." This objection the court overruled and the plaintiff excepted. Again, when the plaintiff was examining his father as to talks between the parties after the letter had been sent, the defendant said: "Of course, if this evidence is intended to vary the terms of that written contract I am objecting to it." The plaintiff answered: "Oh, no," and the testimony proceeded. It is thus entirely plain that both parties asserted that the letter was the final memorial; and in addition the defendant specifically excepted to the judge's charge so far as it submitted to the jury "whether or not there is any ambiguity in the contract."
The reference to future talks at the conclusion of the letter plainly refers to whether it would be to the advantage of the parties that the next few orders from Remington-Rand should come through as "competitive," or as "negotiated." It had nothing to do with the order just received which was the only one on which the plaintiff recovered.
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