Curtis v. Soltau

12 N.Y.S. 285 | New York Court of Common Pleas | 1891

Daly, C. J.,

(after stating the facts as above.) Upon the trial of the action, the defendant offered evidence of conversations with the plaintiff at and before the sale, and letters of the plaintiff"written before the sale, to prove that the sale was by sample, and also that the plaintiff, at 'the time of the execution of the written memorandum, warranted that the gutta-percha was of the same quality as the samples, and also offered evidence to show that the 98 baskets rejected were not gutta-percha, within the meaning of the contract, and were not merchantable, and that he had no opportunity for inspecting the goods which he purchased. This evidence was excluded. There was no written contract of sale on the part of the plaintiff. The memorandum in evidence was signed by the defendant only, and purports to contain his obligation, and no more. It cannot be said to be the contract between the parties. Hot having been signed by the plaintiff, it was not in any sense his contract. He could not have been sued upon it, and so far as he was concerned, his agreement rested solely'in paroi. Under these circumstances, as the agreement of sale has been executed, and no question of the statute of frauds can be raised, the defendant should have been permitted to show by paroi what the contract of the plaintiff was. Since the trial of this action, the precise point has been decided in Routledge v. Worthington Co., 119 N. Y. 592, 23 N. E. Rep. 1111. In that case, which was an action to recover payment .for certain goods sold by the plaintiff to the defendant, the plaintiffs "produced in evidence a writing signed by the defendant, by which it agreed to take them at a price specified. Defendant set up a counter-claim, and offered to prove by"parol that plaintiff agreed, in consideration of the purchase, and as a part of the agreement, that the trade price at which they sold the goods should not be lowered, and damages were claimed for a breach of that agreement. The testimony was objected to and excluded. This was held error; that the writing represented a part only of the contract, that is, the defendant’s undertaking, while that of the plaintiff rested simply in paroi; that there was in fact no valid contract between the parties, but, as it had been executed, this took the agreement out of the statute of frauds, and left the parties subject to, and bound by, the terms of the actual agreement made; citing Lockett v. Nicklin, 2 Exch. 93, which was an action of debt for goods sold and delivered, the goods being furnished upon a written order of the defendant, and the defendant offering paroi evidence to prove that the terms upon which the order was given was six months’ credit, etc., the evidence was held admissible to show the whole contract, of which the paper contains only one of the terms. The rule is stated in the court of appeals opinion as follows: “The rule which rejects paroi evidence when offered with respect to a contract between parties, and put into writing, has no application to a case like this, where, of the original agreement which has been executed, a part only is in writing, and the rest was verbal. The principle of liability is the same, whether the whole transaction be embodied in one instrument setting fortli the respective obligations of both parties, or whether it takes the form of a separate undertaking by each party. Whether we regard the writing of the defendant as an order or as an agreement is quite immaterial. In either view, it was an admission only of the defendant’s engagement. ” In the light of this decision, the exclusion of the testimony offered by the defendant of the agreement made by the plaintiff was error, and the judgment must be reversed, and a new trial ordered, with costs to abide the event. All concur.