68 N.Y.S. 1057 | N.Y. App. Div. | 1901
The plaintiffs are manufacturers of cigars. Their agent visited the defendant and sold him a bill of goods, amounting to forty-three dollars. Another agent of the plaintiffs delivered the goods and handed the defendant a paper which the agent said was a receipt for the goods, which defendant signed, and which now appears as plaintiffs’ exhibit in the case as a contract of agency on the part of the defendant. Thei plaintiffs insist that the defendant holds the goods as their agent; that he has refused to deliver them or to make payment for the same in the manner provided in the contract, and that defendant has converted the same. On the trial of the case the court below dismissed the. complaint upon the merits, and appeal comes to this court..
The plaintiffs rely, upon this appeal, on their objections and exceptions taken at the trial, based upon the idea that certain evidence was -incompetent and immaterial as tending to vary the terms of a written contract; but we are- of .opinion that the alleged contract was never entered into as an expression of the intention of the parties, but was signed by the. defendant under the impression that it was a mere receipt for the goods, and that the judgment in favor of the defendant was a proper disposition of the case.
While it will not be questioned that parol evidence may not be introduced to vary or control a written instrument, the authorities cited by the plaintiffs do not hold that the court may not be informed as to whether a contract was ever, in fact, made. The
The judgment should be affirmed, with costs.
All concurred.
Judgment of the Municipal Court affirmed, with costs.