111 N.Y.S. 293 | N.Y. App. Div. | 1908
Lead Opinion
The plaintiff appeals from a judgment entered upon the dismissal of his complaint at Trial Term. The complaint states two causes of action, only one of which was relied on at the trial. In that cause of action it was alleged that in August, 1895, the plaintiff and the defendant The Bush Company entered into a contract wherein and whereby the said Bush Company agreed to engage with the plaintiff in the business of warehousing under certain specified conditions which involved the erection of warehouses by the Bush Company, the employment of the plaintiff as general manager of the business, the control and influencing of the plaintiff of certain warehousing business, the use and benefit of his personal good will, and the devotion to the business of his time, knowledge and experience. The particular cause of action relied upon is contained in the allegation that “ it was further agreed by and between this plaintiff and said, the Bush Company, Limited, that if it, the said, the Bush Company, Limited, should at any time sell or in any way dispose of
The answer of the defendant Bush Company admits that in August, 1895, the plaintiff and said company entered into a contract in writing, but denies that any other contract was entered into. It is further alleged that on or about October 8, 1895, Irving T. Bush, who at that time was president of the Bush Company, at the request of the plaintiff, wrote and delivered to plaintiff' a letter, a copy of which is annexed to the answer.
Upon the trial the plaintiff testified that for eight years prior to 1895 he had been connected with the Uew York Warehousing Company, whose business had consisted in part of the storage of cotton; that in February, 1895, that company was absorbed into a combination of warehouse companies under the name of the Brooklyn Wharf and Warehouse Company, with whom he remained only a few months; that he thereupon opened negotiations with Mr. Irving T. Bush with a view of inducing him or the Bush Company, a family corporation, to erect warehouses upon a certain vacant water front in Brooklyn. He stated to Bush as an inducement for entering into the business that the company with which he had been connected had realized a large yearly profit from the storage of cotton and that he, plaintiff, could control and influence the busi
In the present case the letter was not the act of the plaintiff but of the defendant, and while it furnished persuasive evidence that some contract had previously been made between the parties upon the subject referred to, it was not conclusive upon the plaintiff as
McLaughlin, J., concurred; Laughltn, J., concurred in result; Ingraham and Houghton, JJ., dissented.
Dissenting Opinion
It seems to me that the 3d clause of this contract expressed the entire agreement between the parties as to the compensation that was to be paid to the plaintiff for what was called “ the production and assignment to the party of the first part or his nominee by the party of the second part of contracts or agreements in such form as may be satisfactory to and approved by Irving T. Bush.” The sole object of making the contract with the plaintiff was to obtain the business that he could control and which was represented by these “ contracts or agreements.” For obtaining such business the plaintiff was to be employed by the defendant corporation and was to be paid a certain compensation for the business that he obtained for the business of which he was appointed manager, which included the business represented by the “ contracts or agreements.” It seems to me that this was an attempt to import into the contract formally reduced to writing and executed by the parties, an additional consideration for the assignment of these contracts or agreements, when by the contract itself the full con
I think, therefore, this judgment should be affirmed.
Houghton, J., concurred.
Dissenting Opinion
I concur with Mr. Justice Ingraham on the ground that the contract and letter together make a complete contract in writing, not open to alteration by parol evidence.
Judgment reversed, new trial ordered, costs to appellant to abide event.