Happel v. Rosenthal

103 N.Y.S. 715 | N.Y. App. Term. | 1907

GIEGERICH, J.

The action was brought to recover the agreed price for labor and material furnished and performed by the plaintiff for and upon a building of the defendant. The contract was in writing, and took the form of a proposal signed by the plaintiff and an acceptance thereof, with a modification signed by the defendant. The appellant insists that the paper received in evidence was not" the paper signed by him, but that his signature, as well as the rest of the contents of the paper, was a carbon impression. The testimony of the plaintiff’s agent who had the transaction with the defendant is that the paper admitted in evidence was the one on which the defendant made his signature, or, in still more explicit terms, “the one he put the pen to.” But whichever of the two was the original—that is to say, the paper put in evidence or the paper contained in the plaintiff’s letter book—both were in court on the day of the trial, and no claim is made that there was an)r difference whatever between the two.

The real point the defendant sought to establish was that his acceptance of the plaintiff’s proposal called for iron stairs, in addition to what was contained in the original proposal and in the acceptance as prepared by the plaintiff’s agent and as signed by him. Upon this issue the defendant was clearly bound by the paper which he signed, and if the plaintiff’s agent, in transcribing from the paper which the defendant took to.him as his proposal, omitted any portion of its contents, the defendant should have called attention to such omission at the time, and have insisted on a correction or have refused to sign the new paper as prepared. When he did sign it, he became bound by it. He not only signed it, but took it away with him; and it was this paper, produced by him upon the trial, that was put in evidence. Upon an examination of the entire case, I' can discover no sufficient ground for á reversal. The trial justice'admitted in evidence the paper produced by the defendant, which he claimed, was his acceptance, and which called for the iron stairs, but apparently found against him on the question whether such was in fact the contract between the parties. It was beyond the right of the ■ defendant to have any 'such question passed upon at all; but the fact that it was apparently entertained, and determined adversely to his contention, renders his appeal all the less meritorious. ■ . • .

So far as concerns the question as to which of the two papers the defendant’s pen or pencil actually touched and traveled upon, whether the one in the letter book or the one that was put in evidence, it might be observed that upon the redirect examination the plaintiff’s attorney asked the witness the following question: “Q. Which paper did Mr. Rosenthal put his pen to?” which was objected to by the defendant’s-attorney as not direct examination, but redirect, and the objection was sustained. After that I do not think the defendant should be heard on appeal to claim that the evidence is not sufficiently clear on the point to which the question excluded on his objection was directed.

The judgment should be affirmed, with costs. All concur.