George v. Davoli – Case Brief

George v. Davoli, 91 Misc.2d 296, 397 N.Y.S.2d 895 (Geneva City Ct. 1977).

Facts: George (P) and Davoli (D) signed a memorandum of sale of Indian jewelry for $500. The sales contract stated that George could return the jewelry for a refund of $440 but did not include a time limit. Davoli refused George’s efforts to return the jewelry and George brought suit for breach of contract.

The trial court permitted Davoli to testify that the parties made a contemporaneous oral agreement that the jewelry had to be returned by the following Monday. George returned the jewelry on Wednesday and Davoli asserted that he was not bound to accept the return of the jewelry.

Issue: Under the UCC, under what circumstances is parol evidence admissible where a writing is not intended to be a complete and exclusive statement?

Holding and Rule: Under UCC 2-202, parol evidence is admissible where a writing is not intended to be a complete and exclusive statement of the terms of the agreement provided that it does not contradict and is not inconsistent with the written terms of the agreement.

U.C.C. 2-202 Final Written Expression; Parol or Extrinsic Evidence

Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented (a) by course of dealing or usage of trade or by course of performance; and (b) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.

Under UCC 2-326 and 2-327, goods must be returned seasonably unless the parties agree otherwise. In this situation one week would ordinarily be seasonal but if the parties have agreed otherwise the court must enforce that agreement.

UCC 2-202 compels a court to allow oral testimony supplementing the writing of the parties if that oral testimony is not inconsistent, and when the writing is not intended as a complete and exclusive statement of the terms of the agreement. The absence of a time limit is the type of omission that falls under 2-202. To be inconsistent a term must contradict or negate a term of the writing.

Davoli’s testimony is not inconsistent with the writing because the memo makes no reference to the time of return. The memo cannot be said to be a complete and exclusive statement of the terms of the agreement. Davoli’s oral evidence stands unrebutted and George failed to comply with the terms.

Disposition: Dismissed.

See Masterson v. Sine for a contract law case brief addressing a parol evidence issue in the context of a transaction for the sale of real estate.


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