48 Misc. 551 | N.Y. App. Term. | 1905
Sometime in February, 1901, the defendant and plaintiff’s intestate entered into a contract, whereby the latter sold to the former a quantity of lumber at an agreed price. What that price was is a matter of dispute; defendant claiming that it was twenty-two dollars and fifty cents per 1.000 feet, and plaintiff insisting that it was twenty-three dollars and fifty cents per 1,000. The defendant has paid twenty-two dollars and fifty cents per 1,000 for all the lumber delivered, and the action involves the one dollar per 1.000 which is in dispute. It appears that the parties met on February 5, 1901, at a restaurant, and came to an agreement as to the price to be paid for the lumber; and, on February sixth, the defendant wrote to plaintiff’s intestate a letter, referring to the conversation on the preceding day, stating that he understood the latter to say that he would furnish the lumber for twenty-three dollars and fifty cents, and giving certain detailed instructions as to quality, description, time of delivery, etc. The defendant contends, and has apparently contended from the first, that the price of twenty-three dollars and fifty cents was inserted in the letter by inadvertence and that the real agreement was for twenty-two dollars and fifty cents; and, to substantiate this contention, he offered proof as to what took place at the conversation of February fifth, there having been witnesses -present other than the two principals. The court below held that the letter of February sixth constituted the contract between the parties; and, as it was in writing, declined to receive evidence of any prior conversation, or negotiations which might tend to vary it. The question then is, whether the real contract between the parties was the oral agreement, said to have been arrived at on February fifth, or was the letter written on February sixth. If it was the latter, the ruling below was right. If it was the former, the court erred in excluding the testimony offered. Of course, nothing is more common than for two merchants to arrive at an oral agreement and, subsequently, exchange letters referring to
Gildebsleeve and MacLean, JJ., concur.
Judgment reversed and. new trial granted, with costs to appellant to abide event.