Wise v. Rosenblatt

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 20th, 1889, the defendant consigned to the plaintiffs eight hundred and twenty-five pairs of shoes for sale, upon which plaintiffs agreed to make advances. These advances appear to have been made in three instalments amounting in the aggregate to six hundred and fifty-five dollars. For each of these instalments the defendant at the request of plaintiffs signed and delivered a receipt in the following words:

“ March 20th, 1889.

“ Received of L. & C. Wise, ■ dollars, '

advance invoice of March 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) “ Wm. Rosenblatt.”

Plaintiffs, having disposed of the merchandise consigned, claimed that after deducting ten per cent., the amount of their agreed commissions, the balance of the proceeds of sale were short of the advances made forty-eight dollars and seventy-two cents, 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

Upon the first appeal herein (9 N. T. Supp. 500), it appeared that the justice in the court below had rendered a judgment in favor of defendant without allowing him for the counterclaim demanded, and which did not appear to have been withdrawn.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 counterclaim. And as the justice had not determined the counterclaim in defendant’s favor he could not fail to award judgment to the plaintiffs for the amount, which, but for the counterclaim, so "far as icould be ascertained from the record of the appeal, was con■cededly 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 re-trial submitted the evidence taken upon the former trial to the justice for his determination. Upon this second trial the justice found for the defendant for the full amount of his .counterclaim, and we are thus for the first time enabled fairly to consider the sufficiency of the evidence in support of the "judgment. It is contended by counsel for the appellants ■that the receipts signed and delivered by the defendant at the

“ 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.” (Wharton on Contracts, § 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 parol evidence of what the engagement of the party not signing was, says, “We think the instillment 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, parol 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 parol testimony, and under it and the verdict of the jury, an express warranty as to the quality of the goods agreed to be furnished, rpust

The point raised by the appellant’s counsel on the appeal in this case is also fully considered in the case of Curtis v. Soltau, decided by the General Term of this court for November, 1890, the opinion in which is about to be announced (Ante, p. 490). The last mentioned opinion is also to the effect that parol evidence of the engagement of the party not subscribing the memorandum is admissible. It follows, that while the defendant could not have been permitted to contradict or vary the terms of his own engagement so far as they have been reduced to writing and subscribed by him, he is not precluded from showing by parol what the plaintiffs promised to do in consideration of his engagement, and inasmuch as it does not appear that the plaintiffs’ engagement was also reduced to writing and properly subscribed, it necessarily follows that resort must be had to

This is not in conflict with the defendant’s engagement that plaintiffs may sell the shoes without limit as to price, and the promise of the plaintiffs tó be answerable to the defendant for the difference between the amount actually realized on a sale, and $1.25 per pair, may in all probability have been made with a view of inducing the defendant to entrust the plaintiffs with the sale, the plaintiffs entertaining, for the time being, the opinion that the goods would not'upon a sale realize less than the amount stated.

For the reasons above stated we cannot predicate any error on the part of the trial justice in allowing parol evidence to be given on defendant’s behalf of the plaintiffs’ guaranty.

The 'judgment should be affirmed, with costs.

Bookstaver, J., concurred.

Judgment affirmed, with costs.