Tocci v. Arata — 16 Daly (N.Y.) 494

Majority

p. 494

Felice Tocci, Respondent, against Pietro Arata et al., Appellants.

(Decided January 5th, 1891.)

Headnote

A writing signed by one only of the parties to an agreement, and purporting to contain his obligation only, not undertaking to bind the other party, is merely an admission of the engagement of the party signing it, and does not preclude him from showing by parol what was the undertaking on the part of the other party.

A writing. purporting to express an agreement on the part of plaintiff to advertise a book which defendants were about to publish, and stating the compensation therefor, was signed on behalf of plaintiff and delivered to defendants by plaintiff’s agent, but was not signed by defendants and did not purport to bind them. Held, that, in an action by plaintiff against defendants for breach of the contract, parol evidence was admissible for plaintiff to prove the terms of the undertaking of defendants, upon the faith of which plaintiff agreed as in the writing indicated.

Appeal from a judgment of the District Court in the City, of New York for the Second Judicial District.

The facts are stated in the opinion.

Hyland Zabriskie, for appellants.

Scott Lord, for respondent.

Plaintiff, being the proprietor and publisher of two newspapers called respectively “ Eco DTtalia ” and the “ Revista,” and the defendants, as copartners, being about to publish a book called the “ Giude,” in the month of April, 1889, after some preliminary negotiations, entered into a contract whereby the plaintiff agreed to advertise the publication of the “ Giude ” in his newspapers, payment for which advertisement was to be made by the defendants by an advertisement of the plaintiff’s business to be inserted in the “ Giude ” and the gratuitous delivery to the plaintiff of five hundred copies of the defendants’ publication.

p. 495

The following writing purporting to express the plaintiff’s engagement was signed and delivered by his authorized agent to the defendants.

“April 10, Memorandum.

“Mr. Tocci agrees to insert in the ‘Eco,’ daily, and in the ‘ Revista Italo Americana,’ an advertisement, reclame, to occupy half a column in the first page, to last and continue until publication of the ‘ Giude.’ In compensation Mr. Arata will insert a top adv. in the ‘ Giude Generate Italiana.’ and fifteen pages of Tocci advertisements in the same ‘Giude,’ and give five hundred copies of the same gratis, to be sent by Tocci to his clients in Italy.

(Signed) “ Felice Tocci, per M. Crevelli.”

Upon the trial the justice permitted the plaintiff against the objection of defendants’ counsel to introduce parol evidence of the terms of defendants’ engagement, upon the faith of which the plaintiff agreed as indicated in the writing hereinbefore set forth, and defendants’ exceptions to this ruling upon the trial present the only alleged errors which the record of this case calls upon us to consider. It is' .apparent from that record that if this parol evidence was propérly admitted then the only question to be disposed of in the trial court was whether or not the parties to this action had performed their respective engagements, the plaintiff insisting that he had furnished the requisite advertisements to entitle him to the delivery of the promised five hundred copies of the Giude., and the defendants on the other hand claiming that the plaintiff had not advertised the Giude as agreed and that he was not, for that reason, entitled to the delivery of such five hundred copies; and thus the question of the defendants’ liability in this action was one purely of fact, which it was the province of the jury to determine, and with which an appellate court should not interfere.

p. 496

We do not think the parol evidence complained of on this appeal was improperly admitted. ■ The writing was signed On behalf of the plaintiff only and did not undertake to bind the defendants. In such a case, it has been held by the Court of Appeals, that the writing, while it may be prima facie evidence of the engagement of the party signing, does not preclude him from showing by parol what the undertaking of the party not signing was, and upon the faith of which undertaking the party signing agreed as in the writing indicated (See Routledge v. Worthington Co., 119 N. Y. 592 ).

The same point is also fully considered in Curtis v. Soltau, just decided by the General Term of this court, and the opinion in which is about to be announced (ante, p. 490). The cases cited determine the question presented on this appeal adversely to the appellants herein.

. The judgment should be affirmed, with costs.

Bookstaveb, J., concurred.

Judgment affirmed, with costs.

Cases cited

Routledge v. Worthington Co. 119 N. Y. 592 N.Y. 1890-03-21 p. 496