31 N.Y.S. 601 | N.Y. Sup. Ct. | 1894
This is an appeal from a judgment for the defendants, entered upon the verdict of a jury, and an order denying plaintiff’s motion for a new trial. The action is to recover the price of squares of veneer shipped to defendants under an executory contract of sale. The defendants refused to accept the goods, on the ground that they did not comply with the contract, and counterclaimed for an amount of freight paid by them. We are strenuously urged to set aside the verdict, on the ground that it is against the weight of evidence. Our examination of the evidence leads us to no such conclusion. There was a fair question of fact whether the goods complied with the order or not, and the question was fairly submitted to the jury, under a charge to which no exception was taken. The verdict must therefore stand, unless there was legal error in the conduct of the trial. In this respect there is but one question that needs discussion. The contract between the parties, so far as it was in writing, consisted of an order given by defendants to the plaintiff’s agent Theis, and a series of letters and telegrams following. The defendants, in their answer, alleged that the sale was made by -samples, on the representation of the agent that the goods were of a superior quality, and equal to the sample. Thereupon the defendants gave the agent an order, in these terms:
“Brooklyn, N. Y., June 29th, 1891.
“Grand Rapids Veneer Works, Grand Rapids, Mick., Order Book No. 1487-Dear Sirs: Please ship us at once 1 carload 1/20” birch squares, composed 'of 1,300 squares 16x10, and balance of equal parts of 14x14 & 15x15. To be dry, flat, and cut smooth, without fractures, and at least ⅓d white faces. Price, $2.75 M. 4 mos. note.
“Yours, truly, Forsythe & Co.
“We pay ½ freight. F. & Co.
“You may send samples of your 1/20 1/15" birch sheets, say 36” grain, & also of shaved- quar. oak, 1/20’’.”
The subsequent correspondence is not material on the question now presented. On the trial the defendants were permitted to prove,
The question of how far parol evidence is admissible to vary a written contract is often very difficult to determine. It may be laid down as a rule that it is not admissible to contradict the written contract, nor where the writing appears to be a complete and perfect ■ agreement. Eighmie v. Taylor, 98 N. Y. 288. But the rule does not apply where the original contract is verbal and entire, and a part only reduced to writing, nor to collateral undertakings. Chapin v. Dobson, 78 N. Y. 75. We think that this case falls within the exception to the rule first named. The negotiation was had orally, and by the presentation of the sample. In pursuance of it, a written order was given. This order was not in form an agreement. It contained no covenants on the part of the vendor, and was not executed by Theis, and therefore could not constitute a contract except on acceptance by the plaintiff. The contract of sale was executory. The vendee had no knowledge of the character of the goods save by the sample. We think that in such a case, under the authorities cited, it was permissible to show that the order and contract were based on samples shown, and that the sale was a sale by sample. The judgment and order denying new trial, appealed from, should be affirmed, with costs.
