12 N.Y.S. 288 | New York Court of Common Pleas | 1891
The facts of this case, so far as they are apparent from the record before us, are, briefly stated, as follows: Plaintiffs were auctioneers and commission merchants in the city of New York, under the firm name of L. & C. Wise. About March 20, 1889, the defendant consigned to the plaintiffs 825 pairs of shoes for sale, upon which plaintiffs agreed to make advances. These advances appear to have been made in three installments, amounting in the aggregate to $655. For each of these installments the defendant, at the request of plaintiffs, signed and delivered a receipt in the following words: “March 20, 1889.
“Received of L. & C. Wise-dollars, advance invoice of Mar. 20th, 1889, on account of all goods consigned to them; the same to be sold at their discretion, without limit as to time or price.
“$- [Signed] Wsi. Rosenblatt. ”
Plaintiffs having disposed of the merchandise consigned, claimed that after deducting 10 per cent., the amount of their agreed commissions, the balance of the proceeds of sale were short of the advances made $48.72, and for the recovery of this balance of advances this action was brought. On the trial the facts above stated do not appear to have been controverted, but the defendant insisted that at the time of the agreement for the consignment of the merchandise by the defendant to the plaintiffs, the latter, as part and parcel of such agreement, had entered into a guaranty with the defendant that the shoes would, on a sale, realize not less than $1.25 per pair; and the principal contention on the trial was as to the admissibility of the oral testimony introduced by the defendant, and allowed by the trial justice against the objection and exception of plaintiffs’ counsel, tending to establish the fact of the alleged guaranty. If this oral testimony was properly admitted, it sufficiently established the guaranty, and the trial justice being authorized to determine the facts, no jury trial having been demanded, it was competent for him to accept the testimony of defendant’s witnesses, and, upon a mere conflict of testimony in that respect, the appellate court will not interfere.
Upon the first appeal herein, (9 N. Y. Supp. 500,) it appeared that the justice in the court below had rendered a judgment in favor of defendant without allowing him for the counter-claim demanded, and which did not appear to have been withdrawn. There was an apparent inconsistency in this. On the uncontroverted proof, in support of their claim for the balance of the advances made, the plaintiffs were entitled to judgment, unless the defendant had shown himself entitled to the amount of his counter-claim; and, as the justice had not determined the counter-claim in defendant’s favor, he could not fail to award judgment to the plaintiffs for the amount, which, but for the counter-claim, so far as could be ascertained from the record of the appeal, was concededly due. To obviate this inconsistency the judgment was reversed, and a new trial ordered. The parties thereupon again appeared in the court below, and, for the purposes of a retrial, submitted the evidence taken upon the former trial to the justice for his determination. Upon this
A mere unilateral engagement is not a contract. “A. agrees to work for B., for wages. What A. says is a promise, so far as concerns himself, and a consideration so far as concerns B.; what B. says is a promise so far as concerns himself, and a consideration so far as concerns A.” Whart. Cont. § 493. In just such a case as the one at bar, the court of appeals, in considering the question whether or not a memorandum subscribed by only one of the parties to the agreement can be said to constitute the sole evidence of the contract, to the exclusion of paroi evidence of what the engagement of the party not signing was, says: “We think the instrument cannot be so construed. It acknowledges an order for certain articles, a period of delivery, and a price. It is an admission of these things by the party signing it, and not at all the contract of both,—a mere memorandum to show what had been ordered, that one party might know what they were to supply, and the other what they were to receive, and so avoid a double order. * * * But even an agreement may be valid, although only a part is in writing, and while as to that part the writing is conclusive, paroi evidence may be used to show the rest. Chapin v. Dobson, 78 N. Y. 74. We think, therefore, no error was committed by the trial court in receiving the paroi testimony, and, under it ■and the verdict of the jury, an express warranty, as to the quality of the goods agreed to be furnished, must be deemed established.” Brigg v. Hilton, 99 N. Y. 517, 3 N. E. Rep. 51. And in Routledge v. Worthington Co., 119 N. Y. 592, 23 N. E. Rep. 1111, Gray, J., in the consideration of the same question says: “In respect to this particular transaction, it was perfectly competent for the defendant to prove a separate and distinct undertaking of the plaintiffs with it, that they would not affect its trade by reducing the trade price. * * * The cases of Chapin v. Dobson, 78 N. Y. 74, Van Brunt v. Day, 81 N. Y. 251, and Brigg v. Hilton, 99 N. Y. 517, 3 N. E. Rep. 51, fully sustain the proposition that, in such a case as this, where the agreement of the plaintiff rested in paroi, it is open to proof. 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 written instrument, setting forth 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. ” The point raised by the appellants’ counsel on the appeal in this case is also fully considered in the case of Curtis v. Soltau, ante, 285, (decided by the general term of this court for November, 1890,) the opinion in which is about to be announced. The last mentioned opinion is also to the effect that paroi evidence of the engagement